Q & A July 30, 2006

Q & A 1. 2. 3. 4. 5.


Q&A 1.

Where 94 Year-old U.S. Citizen Wants To Marry And Sponsor A 60s Year-old Wife

Zhang reader asks:

I am a U.S. citizen, ninety-four years old. I want to marry a sixty years old lady who can take care of me. However, I receive Supplemental Security Income (SSI) from government. Will it affect my application for her? If it does, could I initiate to stop receiving the SSI due to the marriage?

Dear reader:

There appear to be two issues concerning your desire to marry and sponsor the 60 years old lady as your wife. Because of the vast difference in your ages, it is natural to ask whether this will be a bonafide marriage. To an immigration examiner or consular officer, marriage for immigration purposes should be for the purpose of two parties establishing a life together and is not to be used as the way to immigrate a caretaker or nurse. You will also have to execute an I-864 affidavit of support on her behalf. This is so even if you are on SSI. You will most likely need a co-sponsor because of your financial status. The SSI issue pertains to the credibility of an affidavit of support from a co-sponsor since the argument used by American consuls in the past has been whether they can believe an affidavit of support from a co-sponsor where the co-sponsor is not even supporting the sponsor. Your stopping the receipt of SSI benefits at this time will probably not be very important to the outcome of the application as your paperwork and the questions asked of your future wife will probably disclose your recent past receipt of SSI benefits.

Q&A 2.

Steps To Sponsor A Child In China Under The Immediate Relative (IR) Category

Bonnie asks:

I am a U.S. citizen and my husband was born in the U.S.. I have a 14 years old daughter in China. I want to apply for her but don’t know how. What forms do I need and what documents do my daughter need to prepare? Is our notarial relationship certificate the same as her birth certificate? What other notarial documents do we need? How long does the procedure take? Does my husband need to provide the affidavit of support?

Dear reader:

To apply for your daughter in China, you need to fill out the I-130 (petition for alien relative) form and submit it to the U.S.C.I.S. service center having jurisdiction over your place of residence. The fee is $190. U.S.C.I.S. wishes to see proof of your U.S. citizenship (preferably a copy of your naturalization certificate), any proof of name change, and the notarial birth certificate of your daughter. A relationship certificate is not the same as a notarial birth certificate and is many times not accepted. When the petition has been approved by the U.S.C.I.S. service center, it will forward the approved petition to the National Visa Center (NVC) in Portsmouth, New Hampshire. You and your daughter will receive further paperwork from the NVC first in the form of fee bills ($70 for the affidavit of support and $380 for the immigration fee) , and then a second set of papers asking your daughter to fill out a biographic data form (DS-230, part 1), and for you to submit an affidavit of support (form I-864). As the petitioner, you must submit an I-864 binding affidavit of support. Your husband can also join you as a joint sponsor on the I-864A supplemental form. If you and your husband do not have sufficient income and/or savings to meet the support obligations of the I-864, you may also submit an affidavit of support from a co-sponsor who is willing take up the financial obligations of support. Once the NVC has finished processing the paperwork, it will forward the file to the American consulate in Guangzhou. Processing in Guangzhou is unfortunately long, but prior to setting up the interview date, the consulate will send further paperwork to your daughter asking her to fill out the family composition report and immigrant visa application form (DS-230, part II). On the date of interview, she will be required to appear with passport, notarial birth certificate, your marriage and divorce papers, police certificate (if she is over the age of 16 by the date of interview), your and any co-sponsor's current tax return, green card type photographs, medical examination, and any other proof of relationship that she has to you including old family photographs. It may also be helpful for her to have current job letters, proof of recent pay and recent banking statements from you and any others may have provided promises of support on form I-864. The whole procedure should take approximately one to one-and-a-half years.

Q&A 3.

H-1B Validity Dependent Also Upon Working In The H-1B Position And Not Just Ending Date On Paper; Whether An H-4 Dependent Can Change Status To F-1 Student; And What To Do In Case Of Failure Including Watching Out For 3 And 10 Year Bars

Reader Li asks:

My dad holds an H-1B visa and I hold H-4. Our Visa will be expired at the end of August. I am nineteen years old. My questions are:

1) I really want to continue studying in the U.S. but I only have four months to change my status to F-1. Will it work?

2) If my father does not leave the country 60 days after his H-1B expiration, will it affect my changing of status from H-4 to F-1? Will immigration deny my case due to my father’s situation?

3) If immigration deny my case, how should I do?

Dear reader:

1 Valid H-1B status is not only determined by the expiration date of the I-94 forms, but also by whether the H-1B holder is still working in the H-1B approved position. If your father has been maintaining his H-1B status, you should not have a problem in obtaining a change of status to F-1 student. The law does not require that your F-1 status be approved prior to the expiration date of the H-4 - it only asks that the F-1 change of status application be submitted prior to the expiration of H-4 status.

2 Following the expiration of the date on the H-1B approval sheet, an individual who has been maintaining status is only allowed a 10 day grace period to leave the U.S.. If your father has been maintaining legal status and you submit the F-1 change of status application prior to the H-1B expiration date, your father's subsequent actions in failing to leave the U.S. should not affect the U.S.C.I.S. decision on your change of status application.

3 If you are denied an F-1 change of status by U.S.C.I.S., you will have to consider your options carefully. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), individuals who remain in the U.S. for a period of 180 days following expiration of the H-4 dates on their approval sheets (here the date to go by is not the time that your father may have violated his H-1B status by leaving the position earlier but the actual date on the approval sheet) are barred from re-entering the U.S. for three years and persons overstaying for one year are barred for ten years. The chances of obtaining another non immigrant status from U.S.C.I.S. if the F-1 application is denied do not appear to be good since your status expires at the end of August, less than two months from the date of this writing, and U.S.C.I.S.'s processing times for such applications nationwide are over 90 days. If you believe that at some point in the future, you will marry a U.S. citizen, such a bonafide marriage would allow you to adjust status despite your overstay. You can also choose to leave the U.S. and request an F-1 visa from an American consulate or embassy. Barring other special circumstances, those would appear to be the most likely options, and it would be up to you whether to leave the U.S. in case of F-1 denial or attempt to remain in the hopes that something further may develop in the future which will be beneficial to you.

Q&A 4.

Visitor Visas – Factors for Consideration

Massachusetts Lee Reader Asks:

My mother who has retired (72 years old) and I are U.S. citizens. She wants to apply for my half brother (same father but different mother) a visitor visa to come to the U.S.. My questions are:
1. Will this type of visitor visa application be approved?
2. What documents will my mother need to prepare?
3. If I apply for my half brother (same father but different mother) a visitor visa, will he get approval?

Dear reader:

1 Visitor visas are granted in the discretion of American consulate officers. After security concerns, the main inquiry is whether the consular officer is convinced that the individual will return to the home country after a temporary visit to the U.S.. The relationship between your mother and your half brother is a factor for the consular officer to consider as a valid reason for your half brother's trip and for the consular officer's issuing a visitor's visa.

2 Your mother can prepare proof of the relationship between her and your half brother. She can issue an invitation letter describing the purpose of the trip and concluding with a promise that he will return to the home country at the end of the period of visit. I assume that she will rely upon you to provide the appropriate assurances of financial support for your half-brother.

3 See first answer.

Q&A 5.

Filing for Adjustment of Status in the U.S. While Having an Overseas Child

Yan Reader Asks:

I came in the U.S. in 3/2005 under B2 visa. In 7/2005, I hired an attorney and applied for B2 extension. In 9/2005 I received the receipt from USCIS. However, as of today, I have not received any formal notice from USCIS. What should I do?

In 10/2005, I applied for labor certification and was approved on 1/2006. Can I apply for I-140 and I485 at this time while waiting for my B2 extension to be approved?

Can my child, who is 16 years old in China, apply for green card with me?

Dear reader:

If your priority date is current, you can concurrently file your I-140 and I-485 at this time while waiting for the B-2 extension to be approved. An individual who has a timely filed nonimmigrant visa extension pending is considered to still be eligible for adjustment of status. Your child in China, however, cannot apply for a green card at the same time as you since his/her immigration process will follow a different route if you adjust your status to permanent residence in the States. You would have to file an I-824 follow to join application with U.S.C.I.S. (can be filed with the I-485 application), but no action will be taken on it until you are approved for your permanent residence in the States. At that point, the I-824 could be approved by U.S.C.I.S. and the approval forwarded to the American Council in Guangzhou. At that time, your child can begin consular processing his or her papers with the consulate. Assuming that the priority date remains current, your child should be able to arrive in the U.S. within 6-12 months of the date that the I-824 is approved by U.S.C.I.S..

 

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.