World Journal Weekly Q & A - October 29, 2006

Q & A 1. 2. 3. 4.

Q&A 1.

Issues Connected With Employment Based I-485 Adjustment Of Status Application Denial, e.g.- Continued Employment Authorization, Amount Of Wage To Be Paid Now, Appeals And Motions

Huang Reader asks:

My husband came to U.S. in 7/1999 and applied for a labor certificate on 4/27/2001. We paid the 245(i) fine and filed I-485 application. In November 2004, we got C9 cards. In April 2006, we went for interview at Immigration Office, but were denied on June. We are trying to reopen the case now. My questions are:
1. Can we renew our C9 cards? If not, can we still use the social security number for future tax return filing?
2. If our yearly gross income declines in the future, will it affect our case? (In the past year, we paid an annual tax of $320.00)
3. If we could not continue working at the restaurant due to health problem, can we file 1099 odd job income?
4. If this appeal is denied, do we have any other chance for another appeal? How many appeals can we have? Or, can we transfer this case to other category, such as political asylum?

Dear reader:

1 During the time that a motion to reopen is being made on an I-485 adjustment of status matter, U.S.C.I.S. policy is not to renew C9 work authorization cards which are based upon the I-485 filing. That being said, we have seen situations in the past in which the right hand does not know what the left hand is doing at U.S.C.I.S., and individuals in your situation are still given the employment authorization. Insofar as your Social Security card is concerned, its validity as an authorized work document is most likely dependent upon Immigration authorization as that is the way the cards have been annotated for some time for aliens. However, the Social Security number is yours to keep, and you should use it to file future tax returns if you continue to work. The filing of taxes is a legal obligation regardless of whether the taxpayer is legal or illegal.

2 Although your husband does not have to be paid the prevailing wage on the labor certification until the time that he is approved for permanent residence, it may be indicative of his employer's intent to pay the prevailing wage if the alien is working for the employer at the present time and the wage is far from that listed on the labor certification application. For example, where the sponsoring employer is presently paying the alien $12,000 a year and the labor certification wage calls for $45,000 a year, a U.S.C.I.S. officer may question whether the employer's job offer is bonafide. Other than that concern, your yearly income should be sufficient to meet the poverty guidelines as set forth by the U.S. government every year.

3 Your I-485 application is based upon your husband's employment for a certain employer in a certain occupation. I do not know the reason for your denial, but if your case is reopened and if the I-140 petition has been approved, your husband may be able to transfer his case to another employer in the same or a similar occupation. However, even in that situation, he must have the prospect of full time employment. If your husband files 1099 odd job income, that may fail the concept of full time employment. The question may arise as to whether the case is approvable in this situation.

4 You appear to be using the terms "appeal" and "reopen" interchangeably, and it is difficult to know whether you have filed an appeal or motion to reopen or both. By not stating the basis of the denial, you have given no further hints. But generally, the only appeal that could be done at this time would be to the Appeals Adjudications Office (AAO) in Washington for a negative I-140 employment based immigrant visa petition determination. All other issues would be addressed in a motion to reopen. If the I-140 is denied on appeal to Washington, you and your employer can either ask for reopening or reconsideration of the decision with the AAO or bring suit against the agency in federal court. For matters covered by a motion to reopen (if you filed a motion already), the next step is usually to renew your application before the immigration court after you are served with a notice to appear before the court. Appeals from the immigration court can be made to the Board of Immigration Appeals. Suit to the federal courts without going through the immigration court/Board of Immigration Appeals can only be made for matters over which neither body has jurisdiction to decide (and even then in limited cases). In addition, suit in the federal courts other than asylum claims is generally restricted to cases which are not decided in the discretion of the agency. In your case, you may be precluded from filing for political asylum if you have been illegal in the United States for any significant length of time. Political asylum applicants must file political asylum claims within one year of entry to the country although there are exceptions such as individuals who have maintained a legal status in the States-they are allowed a reasonable period of time after their legal status expires to file for political asylum.

Q&A 2.

Follow To Join Asylum Concerns With Overseas Delays

Liu Reader asks:

I received my green card through religion asylum. I first petitioned for my oldest son (the son with my ex-wife) in 2002, and then applied for my current wife and youngest son. By the end of 2004, my wife and youngest son both came to U.S.. My oldest son is now 18 years old and had an interview at Beijing consulate in October 2003, and as of now he has not received any notice. I hired an attorney and sent over 10 faxes to Consulate, but in vain. My son is now living in China alone and I am very worried. What can I do?

I have the custody of my oldest son. My ex-wife, and my siblings are all in the U.S.. My parents were deceased. Currently my oldest son is being cared by a nanny. Please help!

Dear reader:

Your attorney appears to be working on your situation, but it has been three years since your son's interview, and you may wish to obtain a copy of the file and consult another attorney. You may also contact your local Congressman or Senator to see whether he/she would be interested in taking up your case with the Department of Homeland Security office in Beijing.

Q&A 3.

Keeping U.S. Citizenship For Persons Leaving The U.S.

Li Reader asks:

I am a 65 years old U.S. citizen and am retired. Due to circumstances, I want to go back to Hong Kong and permanently reside there. My questions are:

1. How long can I leave the country with an U.S. passport? Is there a time limit?
2. I have already cancelled my lease with my landlord. With my friend’s permission, I could use his address as my mailing address. Which government department should I be contacting for change of address?
3. During my absence in the U.S., if I receive any jury duty notice, what should I do? I had received 3 notices for Jury duty, each time I was dismissed after informed of my poor English.
4. Leaving U.S. from the airport without passing immigration inspection, so I will not have a stamp from U.S. immigration on my passport. Could the Immigration find out if I have already left the county by checking with the airline?
5. I will be stay in Hong Kong long-term. How can I keep my U.S. citizenship?

Dear reader:

1 There is no time limit in which a U.S. citizen in your situation must return to the U.S.. Loss of U.S. citizenship for a person like you can only be done if you voluntarily renounce your citizenship or commit expatriating acts such as serving in government offices in Hong Kong.

2 A U.S. citizen is not required to register with the government for trips abroad. You can contact the post office for your changes of address.

3 When you receive your jury duty notice, you can explain your situation in writing and hopefully that will suffice. If not, you or someone acting on your behalf will have to contact the local clerk of court to determine whether an exemption can be allowed.

4 It does not matter whether Immigration knows that you have left the country as a U.S. citizen's stay in a foreign country for long periods of time is allowed. (I do note for other readers that an applicant for citizenship must demonstrate an intent to reside in the U.S. when applying and all through the naturalization process. But once citizenship is obtained, individuals by and large can leave the U.S. for as long as they desire).

5 See answer to #1.

Q&A 4.

Outlining The Road Ahead In Removal Or Deportation Proceedings

Lei Reader Asks:

1. I came to U.S. in 1996. I have one 3 years old son and one 1.5 years old daughter. I received my C8 card in 2003 and have been working ever since. My wife can’t speak Chinese, so we communicate with each other in English. Will the above situation help my case with the Immigration Appeal Court? I have a court date in November.

2. Will the court order an immediate deportation, if the court denies my case?

3. Is there any other way to gain more time while waiting for the new immigration law to be passed?

4. I have a contract with an attorney to defend me, but not including the appeal. Should I immediately cancel this contract or should I hire another attorney for an appeal (if I lose, I am willing to appeal)?

Dear reader:

1 You have stated that you received your C8 card. Since a C8 card is only given to individuals with pending political asylum cases, the fact situation you describe may help your case as you may be able to present a family planning political asylum claim in addition to any other claims that you may have presented previously if you are from China which has a repressive birth control policy. Whether you will be able to have success based upon the claim will depend upon your particular fact situation, the credibility of the testimony, and attitude of the immigration judge.

2 Under most situations, applicants for asylum who lose in the immigration court are allowed to appeal to the Board of Immigration Appeals and then to the federal courts.

3 Other than as just mentioned, the ability to gain more time in a removal case depends upon the facts of the case, such as whether the individual has an initial hearing (master calendar hearing) or a final hearing (individual hearing). Immigration judges are more apt to grant continuances where an individual hearing has not yet been scheduled. Motions to change venue to another jurisdiction, requests for time to prepare new applications, emergencies on the part of the attorney or alien, changes of calendar by the court itself, etc., can all work to delay hearings. Some judges are more sympathetic to requests for continuances than others.

4 As a rule of thumb, it is always best to have the same lawyer represent you in both an immigration hearing and administrative appeal if you are satisfied with his/her level of representation. The attorney will already know (by being in the immigration court) the issues for appeal. If you do not choose to retain the same attorney for an appeal, you should contract with your new attorney as soon as possible after the immigration judge's decision as you only have 30 days to perfect an appeal to the Board of Immigration

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.