World Journal Weekly Q & A - September 23, 2007K-1 Fiancée is a Communist Party Member and Her Case is Delayed. Reader Asks if Party Membership Will Affect the Application and How Long Will be The WaitCY reader asks: I am a U.S. citizen. I applied my fiancée who is in China for a K-1 visa. She is a member of the Communist Party. Will her party membership affect the petition? Does she need to withdraw from the Party? Two months ago I received a letter from Consul stating that my fiancée should receive a letter from consul soon, but as of now, she has not received it yet. How long does she have to wait? Dear reader: Membership in the Communist Party is a bar to immigration to the
U.S.. There are exceptions for involuntary membership, persons who
have terminated membership or affiliation for at least five years
and are not threats to the security of the United States, and for
those who are close family members of U.S. citizens or permanent
residents that the Attorney General in his discretion decides to
admit for humanitarian purposes, family unity or when it is otherwise
in the public interest if they are not threats to the nation's security.
Your fiancee's withdrawal from the Party at this time would not
affect the bar. For the moment, she will have to wait until the
time that the consulate finishes its internal processing of her
case including background checks. Use of a Labor Certification Application for Section 245(i) Benefits With a Related Question on I-601 ApplicabilityJackson reader asks: My friend came in to the U.S. in 1998 using a fake passport. Prior 4/30/2001, he applied for 245i with the Department of Labor using his real name. In 2002, the Labor Department denied his 245i, stating there was error in his application. He married his U.S. citizen wife in 2002. In his situation, is there a possibility for him to apply for green card? Can he apply for waiver (I-601)? If he can, what is the procedure? Dear reader: We have noticed that U.S.C.I.S. officers sometimes have taken too
hard of a stance in demanding extensive documentation of earlier
labor certification applications which could qualify an individual
under section 245(i). Under section 245(i), most individuals who
would otherwise not be able to adjust status to permanent residence
in the United States are able to do so upon the payment of a super
fee of $1,000 so long as they have had immigrant visa petitions
or labor certification applications submitted on their behalf by
April 30, 2001. A harsh interpretation of the evidence required
to confer section 245 (i) benefits in a labor certification application
may not be warranted under current U.S.C.I.S. guidelines. You have
stated that the Labor Department denied this application because
there was error. The denial of a labor certification application
does not necessarily disqualify the applicant for the benefits of
section 245(i). Such would depend upon the error that was involved.
The question of the use of an I-601 application for waiver of grounds
of inadmissibility to cure use of the fraudulent passport and allowing
adjustment of status appears to be up in the air for those situations
in which the individual used his/her real name, date of birth, and
country of birth on the false document. For all other situations,
there does not appear to be any serious consideration to allow adjustment
of status as the applicants in the eyes of U.S.C.I.S. were never
inspected. If your friend does not qualify under section 245(i),
the other possibilities for permanent residence include waiting
for a change of law that might allow your friend some relief or
leaving the United States for consular processing of his marriage
case and requesting an I-601 waiver after interview for both the
use of the fraudulent passport and the 10 year bar occasioned by
his remaining illegally in the U.S. for one year after April 1,
1997. Applying for Mother in China Who Overstayed for Three Years in the U.S.Lin reader asks: 1. I am a U.S. citizen and want to apply my mother who is in China
for her green card. I should provide the following: I-130, copy
of my naturalization paper, my birth notarial paper, I-864, I-864A
and filing fee. What documents does my mother need to provide? When
and where should she submit her documents? Dear reader: 1 At the time of her interview, your mother will be asked to provide a valid passport, notarial certificate of birth, notarial certificate of marriage or death or divorce of her former husband(s), military record if she ever served in the military, police certificates of every country in which she has resided for at least 6 months since the age of 16 (not U.S.), a resume if she has held scientific jobs, and a medical examination. In China, most of these documents will be requested at the time of the medical examination. 2 An overstay of one year or more in the United States under a
B-2 visa after April 1, 1997, bars a visa applicant for 10 years
from entry to the U.S.. Your mother (if eligible ) can file a I-601
application to waive the ground of excludability following her interview
at the consulate. An I-601 waiver is based upon extreme hardship
to a qualifying U.S. citizen or permanent resident parent or spouse.
Naturalization Questions of Reader with Extensive Absences Constituting Abandonment of Permanent Residence StatusChen reader asks: I am 63 years old. I received my green card in 6/1988. But in 1990, I went back to my own country until 1995. I stayed in the U.S. for a while and went back home again in 3/1996. In 2002, I came back again but on the plane, I filled out the form identifying myself as a visitor. I did not show my green card. Now, I am thinking to apply for U.S. citizenship. Am I qualified?
I do not read, write or speak English, can I take a Chinese test?
Should I apply in New York? I am currently living in Florida. I
had only filed tax return for the past year and now working for
a public school. I cannot encourage you to apply for naturalization as it is clear
from your question that you are not even legally a lawful permanent
resident anymore. You abandoned your residence status from 1990-'95
in your stay in your home country and obviously abused the green
card status again through going home from 1996-'02, re-entering
on a visitor's visa, and then attempting to resume living in the
U.S. like a permanent resident. If the U.S.C.I.S. examiner knows
or learns of your history during the naturalization process, he/she
would most likely take steps to place you in removal proceedings.
Permanent Resident Parent Bringing Baby Born Overseas to the U.S.Zeng reader asks: In 3/2006, my family of three received lottery green cards. I am currently pregnant and due in 5 months. Because I still have a job in Taiwan, so I could not give birth in the U.S.. I heard from AIT that I could take my Taiwan born baby directly to the U.S. (cannot first go to other country), and my baby could receive a green card. Is it true? If it is true, what kind of documents do we need for green card? Can I request an I-551 stamp on the passport at the airport, so that I can bring my baby back for work? If it is not true, how can my baby receive a green card without the green card holder parent’s application that usually requires a 5-year wait time? Dear reader: It is true that you can bring your baby back to the United States with you on your first trip following the child's birth and he/she will be admitted as a permanent resident. You must have his/her official proof of birth along with a certified English translation. The Customs and Border Protection inspector will fill out the necessary paperwork at the port of entry.
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Copyright © 2003-2007 Alan Lee,
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