World Journal Weekly Q & A - February 11, 2007
Q & A 1. 2. 3.
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Q&A 1.
Will 1994 F-4 Approved Visa Petition Applicant Receive Instructions
on When to File the Rest of the Papers for his Green Card?
Cui Reader Asks:
My friend applied an immigration visa under 4th category in 1994.
Per world journal, His priority date is current in the beginning
of the year. What’s the next step? Will the Immigration officers
contact him? Or the petition needs go to the Immigration to check.
Will the Immigration inform the petitioner or the beneficiary? What
other knowledge should my friend be aware in order to continue process
his case?
Dear Reader:
If your friend is in the United States and seeking adjustment of
status to permanent residence, he will receive no further notifications
from U.S.C.I.S.. It is incumbent upon him to know when his priority
date becomes current in order that he can fill out the I-485 adjustment
of status to permanent residence packet and send the paperwork to
the Chicago lockbox of U.S.C.I.S. at:
U.S.C.I.S.
P.O. Box 805887,
Chicago, IL. 60680-4120
(or by courier to)
U.S.C.I.S.
427 S. LaSalle, 3d Fl.
Chicago, IL.60605-1098
If your friend requires an employment authorization, he
can apply for such at the same time. If your friend is overseas,
he would receive notification from the National Visa Center as to
all the steps that are needed in order for him to proceed to permanent
residence through an interview at the consulate or embassy in his
home country which is charged with processing immigrant visas. There
are two major differences between adjustment of status and consular
process of immigrant visas. As opposed to consular processing, U.S.C.I.S.
does not keep track of applicants once the I-130 immigrant visa
petition is approved. It does not provide step-by-step instructions
afterwards to processing the permanent residence application. The
second difference is that the Department of State will attempt to
complete all the paperwork so that the visa applicant is interviewed
as soon as the priority date becomes available. In adjustment of
status processing in the States, the applicant cannot file an adjustment
of status application until the priority date is current. In a case
like your friend’s, he would normally immigrate faster if
he was overseas. I do note that individuals who are in the United
States may not have the choice between adjustment of status or consular
processing if they are illegal as most undocumented immigrants are
subject to three and 10 year bars if they leave the U.S..
Q&A 2.
How Can a Conditional Resident Through Marriage Obtain the Final
Green Card if Separated or Divorced?
Liu Reader Asked:
I am a Chinese and married a U.S. citizen in 2003. I came to U.S.
in August, 2005 under CR1 Visa. I received the temporary green card
in the same month. My green card will expire next year. Now my husband
filed for divorce and I have received the documents from the Court.
I have some following questions:
1. My husband and I have already separated. I live in NY and he
lives in Philadelphia. If I sign the divorce with him, now can I
apply for 10 year green card by myself next year? If I can, what
are the requirements and what documents should I prepare?
2. If I do not sign the divorce paper now, con I apply it by myself
next year? Does my husband need to sign the application? What documents
should I prepare?
3. I have already received divorce paper from court. If we keep
our marriage relationship and next year he files my permanent G.C.
for me, at that time, will the Immigration find out my husband filed
for divorce?
Dear reader:
1 If you and your husband divorce, you can apply for removal of
the conditional basis of your residence status by filing Form I-751
through any or all the bases of: a.) proving that although you are
divorced, you had a bonafide marriage; b.) proving that you were
a battered spouse; or c.) proving that it would cause extreme hardship
for you to return to your home country because of circumstances
that arose after the beginning of your conditional residence.
2 If you do not have a divorce by next year, you can apply for
removal of the conditional basis of your residence status by filing
Form I-751 through any or all basis of a.) having your husband sign
jointly with you on Form I-751; b.) proving that you were or are
a battered spouse; or c.) proving that it would cause extreme hardship
for you to return to your home country because of circumstances
that arose during the period of your conditional residence.
3 If you have already been divorced in a court and you attempt
to file jointly for removal of the conditional basis of your green
card, U.S.C.I.S. would consider that to be a fraudulent application.
I cannot tell you whether U.S.C.I.S. will find out that you have
divorced, but the penalties for immigration fraud are stiff.
4 In terms of documentation, you must enclose a copy of your conditional
residence card regardless of which method you choose. To prove a
bonafide marriage, you would need to submit evidence of living together
such as tax returns, leases or deeds, rent receipts, utility bills,
banking records, telephone records, photographs, etc.. To prove
that you were or are a battered spouse, you would have to show such
items as copies of reports of official records issued by the police,
courts, medical personnel, clergy, social workers and other social
agency personnel, and/or other evidence such as orders of protection,
photographs, or that you sought safe haven in a shelter. To prove
extreme hardship, you would have to provide evidence that your removal
would result in hardship significantly greater than the hardship
encountered by other persons who are removed from this country after
extended stays, such evidence relating only to those factors that
arose since you became a conditional resident.
Q&A 3.
Can a Conditional Resident Apply for FAFSA Without Such Application
Affecting Her Immigration Status?
Liang Reader Asked:
1. I married a U.S. citizen and got the green card. I want to continue
my studying at local university. If I apply for financial aid /
FAFSA, will it affect my status?
2. My conditional green card will be expired soon, will I be scheduled
for another interview besides filing for removal of condition?
3. Should the proofs of living together be sent to Immigration
along with the application?
4. Could you give me more details on the whole process?
Dear reader:
1 If you apply for FAFSA (Free Application for Federal Student
Aid) in order to continue your studies at the local university,
such application will not affect your residence status. You should
attach a copy of your green card to the application. In looking
at the question of public charge, U.S.C.I.S. focuses on cash benefits
for income maintenance and institutionalization for long-term care
at government expense. FAFSA is a benefit that is not considered
for public charge purposes.
2 Whether you are scheduled for another interview upon filing of
your I-751 application to remove the basis of your residence status
is a decision to be made by U.S.C.I.S..
3 Yes.
4 Conditional residents through marriage are required to submit
the I-751 application within the 90-day period prior to the second
anniversary of receipt of conditional residence to the local U.S.C.I.S.
Service Center having jurisdiction over their place of residence.
In your case, the application should be as full as possible with
evidence showing a shared life. The service centers are empowered
to approve, deny, request further evidence, or send the case to
the local district office for interview. Upon filing, applicants
will receive employment permission and travel authorization for
one year. Within the one-year period of time, U.S.C.I.S. attempts
to adjudicate the application. As of December 18, 2006, the four
U.S.C.I.S. service centers handling I-751 have posted the processing
date of June 15, 2006, meaning that they are within their six-month
goal of adjudicating this type of application.
Q&A 4.
Passing the Naturalization Test and being Denied for Citizenship
at the Swearing in Ceremony for not being able to Answer a Question
in English
Dear Mr. Lee:
I would be grateful for your advice. I've got a heart-broken 76-year-old
client. She appeared yesterday for an oath ceremony.
Sometime between the moment she entered the Dist Court with her
kids and grandkids to celebrate her impending natz & the time
she handed the officer her N-445 Questionnaire, CIS determined that
she couldn't speak English, notwithstanding that she passed the
English & civics exam on her 1st attempt at the natz interview.
The officer then had her converse with an unknown person via telephone
for approximately 15 minutes to review the Q's on the N-445.
Following the telephonic interview, the officer promptly removed
her from the list, denied her natz petition, and sent her home without
even her green card.
I understand that CIS-- when it receives derogatory information
between the time of interview and oath-- can do this (e.g., where
applicant is arrested or falls below physical presence req'ment,
etc). However, where CIS evaluates applicants’ ability to
speak English, isn't CIS required to do so in the context of a standardized
test and formal interview?
Officer here apparently made this determination in the course of
conversation with applicant and a 15 minute telephonic interview
with an unknown person. I don’t know of formal English and
civics exams being re-administered at the oath ceremonies, do you?
Regards,
Fellow Attorney
Dear reader:
We have heard of the situation you describe, and it is disheartening
to anyone caught up in this situation. Hopefully someone will take
the time to litigate the matter. There is probably a due process
violation here. Other readers should be aware of this little known
practice, and prepare themselves for their swearing-in ceremony
just as if it was an extension of the test itself. In this regard,
candidates for swearing-in should take the time to read over and
fill out the questions on the backside of the N-445 form along with
signing, filling in the date and place of signing, and providing
the current address before going to the swearing in ceremony. They
should familiarize themselves with the questions in order to answer
intelligibly in English in the event that questions are asked. Please
note that the questions pertain to activities which have occurred
since the date of the test. For readers who are not aware, the N-445
questions are as follows:
After the date you were first interviewed on your application for
Naturalization, Form N-400:
1. Have you married, or been widowed, separated, or divorced? (If
“Yes” please bring documented proof of marriage, death,
separation or divorce.)
2. Have you traveled outside the United States?
3. Have you knowingly committed any crime or offense, for which
you have not been arrested; or have you been arrested, cited, charged,
indicted, convicted, fined, or imprisoned for breaking or violating
any law or ordinance, including traffic violations?
4. Have you joined any organization, including the Communist Party,
or become associated or connected therewith in any way?
5. Have you claimed exemption from military service?
6. Has there been any change in your willingness to bear arms on
behalf of the United States; to perform non-combatant service in
the armed forces of the United States; to perform work of national
importance under civilian direction, if the law requires it?
7. Have you practiced polygamy; received income from illegal gambling;
been a prostitute, procured anyone for prostitution or been involved
in any other unlawful commercialized vice; encouraged or helped
any alien to enter the United States illegally; illicitly trafficked
in drugs or marihuana; given any false testimony to obtain immigration
benefits; or been a habitual drunkard?
Even though proper preparation may not always save an individual
at the swearing in ceremony (we have heard of others denied swearing
in where court officers believed that only their lips were moving
when reciting the oath of allegiance), at least these steps along
with learning to say the oath of allegiance might help avoid disappointment
at this very last step to naturalization. The words of the oath
of allegiance are as follows:
I pledge allegiance to the Flag of the United States of America
and to the Republic for which it stands, one nation under God, indivisible,
with liberty and justice for all.
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