Q & A April 9, 2006

Q & A 1.

Q&A 1.

Asylee Spouse, Crime and Divorce

I came to U.S. 5 years ago as an asylee’s family member. Later, I worked for a trading firm. Because my boss smuggled illegal goods, I was implicated and prosecuted as “Failure to Disclose Role”. I was jailed for 4 months with 2 years of probation (Class D Felony). I received CIS letter recently informing that my I-485 has been transferred to local office. My questions are:
1. Do I still have chance getting my I-485 approved under this situation? (I am still in probation and I have good behavior letter from the probation officer)
2. Will I be getting interview notice? How long will it take? Will I be denied without interview and will CIS send me to Immigration Court?
3. After my release from jail, my husband and I were separated because he was afraid that I would implicate him. If he insists divorcing me, can I still stay in U.S. legally? (We have no children in the U.S. )
4. If I divorce my husband and marry an U.S. citizen, then re-file I-485, do I have better change getting green card?

Dear reader:

1 I do not practice criminal law and cannot give you a definitive answer on the effect of your crime on your permanent residence application. I will, however, attempt to point out the parameters of the problem. The incident would appear to be one that labels you a person of bad moral character, but not necessarily one committing a crime involving moral turpitude. If the incident, however, does involve moral turpitude (which it would not appear to in your description), a further question is whether the top possible sentence that you could have received was over one year. If so, the act would make you excludable. Nevertheless, you are eligible to file for a waiver of the crime, and U.S.C.I.S. will consider it in light of the fact that it has granted you derivative asylee status.

2 If your I-485 has been transferred to the local office, you should be getting a notice for interview. The speed of the interview will depend upon the local backlog. You should not be denied without interview as you are eligible to file a waiver if necessary. If your residence status is ultimately denied, U.S.C.I.S. can of course give you a notice to appear in the immigration court. At that time, you can renew your I-485 application along with the waiver application.

3 Your derivative asylee status is dependent upon your husband. If he divorces you, it appears that you would have a difficult time remaining permanently in the U.S. without having some other basis to stay. If you have a separate claim for asylum, you could apply for it as soon as the divorce becomes final.

4 Marrying a U.S. citizen and re-filing an I-485 will not improve your chances of obtaining your permanent residence as compared to your present situation if you remain married.

Copyright © 2003-2006 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.