World Journal Weekly Q & A - May 27, 2007
Q & A 1. 2.
Q&A 1.
Can Reader Use 245(i) to Extend H-1B Status in U.S. Although now
Illegal?
A reader asks:
I have a Masters degree from the U.S. and was previously in a job
on an H-1B visa. Unfortunately I lost the job in 2003. Since that
time, I have done nothing with my immigration status. However, I
now have an employer who is willing to sponsor me for another H-1B
visa. I believe that I am eligible because I had an approved labor
certification under section 245 (i) with my former employer with
a priority date of March 2001. As I understand, I am able to file
and obtain forgiveness from the U.S. government if I pay $1,000.
I visited another lawyer who told me that this could be done. I
am looking for a second opinion. Can I do this?
Dear reader:
You are wise to seek a second opinion as you either misunderstood
what the lawyer was saying or the lawyer gave incorrect advice.
Section 245(i) only applies to immigrant and not nonimmigrant situations.
If you have another basis to immigrate, eg. second labor certification,
family petition, visa lottery, the U.S.C.I.S. will allow you to
interview in the U.S. upon payment of a fine amount of $1,000 because
you qualify under 245(i) as an individual who filed a labor certification
application or immigrant visa petition by April 30, 2001. I do note
that individuals qualifying in this category must also prove that
they were physically present in the U.S. on December 21, 2000.
Q&A 2.
What Weight to Give Newspaper Answers for Your Personal Legal
Affairs: the Fate of K-2 Children of K-1 Fiancees of U.S. Citizens
Who Were 18 When the Marriage Occurred
Shawn reader asks:
In March 2005, I wrote questions to your newspaper’s Immigration
Column concerning my immigration process and was told to apply for
245(i). Under your guidance, I hired a lawyer to do 245(i), however,
my lawyer said that the successful rate would be low because I came
to US as K2 status, and I was not qualified for 245(i). But I read
your answer repeatedly, you emphasized that as long as I came to
US before April 30, 2001, I would be qualified.
I came to U.S. under K2 in 1999 when I was 53 days away from reaching
21 years old. Before turning 21, I filed I-485. My mother received
her green card in 2000. On the date of my interview in 1/2001 I
had already turned 21, the examiner cancelled my interview. My mother
then applied I-130 in 1/2001 for me. My stepfather also wrote letters
to the White House, their reply stated my case “had not yet
been denied”. But in 12/03, I received a notice from CIS asking
me to leave the county in 6 months. My mother was naturalized in
2004 and my I-130 was upgraded. I did not go for my first Guangzhou
consulate interview but applied for extension. My lawyer is preparing
papers for me to give it to the examiner to cancel the “10
year bar” restriction. But the lawyer told me the examiner
has discretion, so there’s still a possibility that I will
be barred from entering the U.S.. My questions are:
1. If I entered U.S. under K2 visa, can I use 245(i) to adjust my
status?
2. If I can use 245(i) to adjust my status, can I have one of your
lawyers help me, or can you recommend one to me?
3. If I am not qualified, what should I do?
Dear reader:
For you and all other readers, kindly remember that the advice
that you read in any newspaper including this one (even from lawyers)
should not be relied upon for your individual case. The caution
is expressed in every column of answers in the newspaper. Please
also understand that the newspaper gives readers' questions to different
lawyers who give answers based on their varying degrees of familiarity
with the area. Also that there is no substitution for having an
appointment with a lawyer who can devote a period of time to your
questions rather than a lawyer giving an answer based upon a short
question(s) on a piece of paper. I personally would not have given
such an optimistic answer as you attribute to this newspaper in
2005 or 2006 since the prevailing view of U.S.C.I.S. officers was
that you were not eligible to adjust status to permanent residence
unless the marriage between your mother and stepfather occurred
before you turned the age of 18, and that you would not be able
to adjust under a separate provision of law, section 245(i). Their
further view was that if the marriage happened on or subsequent
to your 18th birthday, you would be stuck in the situation in which
U.S.C.I.S. would not adjust your status based upon your relationship
with your stepfather, and your staying in the United States accumulated
illegal time as a K-2 was ineligible to change status to any other
non immigrant status or to adjust status to permanent residence
through any other means than through the step relationship.
The above having been said, there is now hope for cases like yours
as Michael Aytes, the associate director of domestic operations
of U.S.C.I.S., clarified in a memorandum dated March 15, 2007, "Adjustment
of Status for K-2 Aliens" that K-2 aliens seeking to adjust
status are not required to demonstrate a stepparent/stepchild relationship
with the petitioner in order to adjust status to permanent residence.
Mr. Aytes pointed out that officers should not limit the adjustment
of status of K-2 aliens to persons under the age of 18 based on
the term "minor child" in the governing statute as the
statute does not have a definition for the term. He stated that
officers should allow for the adjustment of status of K-2s to the
age of 21, provided the requirements of adjustment of status in
general were satisfied.
In your case, however, there are still questions as you are well
over the age of 21 and you reached that age in the year 2000. You
also received a denial from U.S.C.I.S. in 2003 according to your
letter. Although the U.S.C.I.S. while not promulgating regulations
for the Child Status Protection Act (CSPA) has been fairly strict
on its applicability where children have aged out, the Board of
Immigration Appeals and the federal courts have been more liberal
in applying the CSPA to cases like yours. It may be possible to
request consideration from U.S.C.I.S. through motion or to assert
your right to immigration if and when you are served with notice
to appear before an immigration court.
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