World Journal Weekly Q & A - November 11, 2007
Q & A 1. 2. 3.
4. 5.
Q&A 1.
Counting Age Under The CSPA and Possible Option
Dear Mr. Lee,
I have an I-140 visa petition and an I-485 application that were
filed under the third preference employment category in the recent
one month period that Immigration gave for all employment cases
to file for their green cards. I also filed I-485 applications for
my wife and two sons. My priority date is April 15, 2004 under the
China quota. I filed my I-140 petition on August 21, 2006, and it
was approved on December 21, 2006. My oldest son was born on February
14, 1986.
1 Is there any argument that I can make even when as per the CSPA
my son's age is 21 years and 14 days before the priority date became
current or are we just at the mercy of the adjudicating officer
to ignore the 14 days?
2 Is U.S.C.I.S. calculating age for the CSPA using the number of
months or the exact number of days?
3 I have another I-140 visa petition which I filed under a national
interest waiver (NIW)on April 22, 2005. That application was denied
and is on appeal with U.S.C.I.S.'s appeals office at this time.
Can my son gain any relief from this petition?
Dear reader:
1 Your calculations appear to be correct that your son is not eligible
under current interpretations of the CSPA. His age could not be
considered frozen for purposes of CSPA counting until July 1, 2007,
when availability appeared on the visa bulletin. He is given credit
for the period of time that the visa petition pended which in his
case was 122 days. He needed 136, the period from his 21st birthday
on February 14, 2007, until the priority date became current on
July 1, 2007. There does not appear to be an argument to give him
those required days and so he would be at the mercy of the U.S.C.I.S.
and whether it chooses to look the other way to the 14 days.
2 U.S.C.I.S.'s calculation of age for the CSPA involves the exact
number of days and not counting by months.
3 If you win your appeal and the current visa availability date
for China remains past April 22, 2005, your son may be able to benefit
under the CSPA as the U.S.C.I.S. counts the time that the case is
pending on appeal as time that can be credited to a beneficiary.
Upon approval, your son would be credited with all the time from
your submission of the I-140 under the NIW filing (for the sake
of other readers, an NIW filing does not require a labor certification
but is a direct filing with U.S.C.I.S. on form I-140) to the date
of approval.
Q&A 2.
Taking Advance Parole When Filing Adjustment of Status Under Section
245(i), Its Dangers and A Possible Option
Dear Mr. Lee:
I am a specialty cook with labor certification priority date of
March 2001, I-140 approval in May 2005 and I-485 with 245(i) fine
pending with the U.S.C.I.S. since January 2006. In August 2006,
I had an interview in New York City but did not pass because my
U.S.C.I.S. decision a week later said that I was barred from immigrating
because I took advance parole and came back to the U.S. after having
been illegal for one year or more. My lawyer filed a motion to reopen
for me in September 2006, but I wonder what I can do now. My wife
is also filing with me and our one child is a U.S. citizen. I have
a brother and sister who are permanent residents, but my parents
remain in the homeland .
Dear reader:
Persons who leave the United States on advance parole must take
seriously the warnings on the parole document that you may be barred
if you have been illegal in the States. Under the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), most
persons who are illegal for 180 days or one year after April 1,
1997, are barred from reentry for three or 10 years respectively.
A waiver can be submitted, but requires that the applicant show
that extreme hardship would occur to a U.S. citizen or permanent
resident spouse or parent because of the departure. Such would not
appear to fit your situation unless your spouse found an independent
way to immigrate or your parents immigrated to the States. A waiver
is not available through the U.S. citizen child. I do note that
there is a 10th Circuit case (the circuit covers the states of Wyoming,
Utah, Colorado, Kansas, Oklahoma and New Mexico) which holds that
an applicant who is entitled to the benefits of section 245(i) remains
eligible to adjust status even after having left and reentered the
U.S. following more than 1 year illegal stay in the country. In
your case, there may be the possibility of your taking advantage
of such a ruling if you move to that court's jurisdiction and obtain
a same or similar job offer. Under the portability rules of U.S.C.I.S.,
an individual is able to port his/her I-140 to another employer
if the I-140 petition has been approved and the I-485 has been pending
for 180 days so long as the new job is in the same or similar occupation.
However, there is also the possibility that such a move as described
above will not be accepted as you would be moving into the jurisdiction
after your denial and your attempted portability would also be after
a denial. Such factors might significantly weaken your case.
Q&A 3.
Factors in Deciding Whether to Attempt to Reopen an Old Deportation
Order
Dear Mr. Lee,
I and my parents went to the United States in 1995 from Indonesia
under a tourist visa. I was only 13 at the time, but my dad applied
for political asylum for all of us and the case was lost in the
immigration court in 1996. The immigration judge gave us voluntary
departure until January 1997. My father has a labor certification
pending under the employment third preference since April 2001 which
would make him eligible for section 245(i). My fiancee is a U.S.
citizen and we are thinking of being married in the next three months.
Can we reopen our cases ?
Dear reader:
Because of your age at the time the proceedings, you would present
much more appealing circumstances for reopening of your case upon
your marriage to a U.S. citizen than your parents. This is of course
assuming that the marriage is bonafide. At such age, you were not
legally capable of making up your own mind as to request for or
violate the voluntary departure order. With your father's situation,
he should determine what is happening with his labor certification
application at this time as the Department of Labor has by and large
completed its backlog of cases. Assuming that he later has the labor
certification approved, he would have a much harder time convincing
the U.S.I.C.E. district counsel's office to agree to reopen his
case because of his violation of the voluntary departure order.
Motions to reopen proceedings by right must be done within 90 days
of the order or else are generally considered untimely and require
the agreement of U.S.I.C.E. unless there are exceptional circumstances
that would move the immigration judge or the Board of Immigration
Appeals to reopen.
Q&A 4.
Filing for NIW in Another Field After Extraordinary Alien (E-11)
I-140 Approved and the Revocation Process
Dear Mr. Lee,
I applied for immigration under the extraordinary alien category
as an archaeologist in 2004 and was approved. Because I am not working
in my field (doing computer networking now), my lawyer suggested
that I file another petition under a national interest waiver (NIW)
in my present area. When we filed, the U.S.C.I.S. not only denied
my latest application, but revoked my extraordinary alien approval.
What can I do now?
Dear reader:
Under law, you can contest a revocation by rebutting that "good
and sufficient cause" exists to revoke the petition. Such burden
is upon the U.S.C.I.S. even if it is not a large one to bear. Any
appeal must be filed within 15 days after notice. I note that we
successfully contested the right of legacy INS to revoke I-140 petitions
after individuals had embarked on their journeys to the U.S. in
the Second Circuit Court of Appeals in the case of Firstland v. INS in 2004, but that Congress subsequently passed legislation
overruling the Firstland decision.
Q&A 5.
Possible Options for H-1B Holders Expiring Their Six Year Limit
Whose Labor Certification Applications Are Pending But If Approved
Will Not Be Within The Six Years
Dear Mr. Lee,
I am in the sixth year of my H-1B which will expire on October
31, 2007. I filed my PERM labor certification application on December
15, 2006, but have not yet received my labor certification. My category
is the employment second category for China born since I have an
M.B.A. My lawyer had a lot of confidence and told me many times
before that I could get my seventh year extension even if the priority
date was not current through getting my I-140 preference petition
approved as soon as I got my labor certification. Now she is not
so sure. What are my options?
Dear reader:
There is the possibility that you will be entitled to the three
year extension of H-1B status given to those who have an I-140 preference
petition approved and whose priority dates are not yet current if
you receive your labor certification very quickly and your I-140
preference petition is approved by the time of your expiration on
October 31, 2007. The difficulty is of course that the time is coming
up very rapidly and U.S.C.I.S. is no longer accepting the premium
processing fee for I-140 petitions because of the large number of
filings that it received for employment based I-140's during July-August
2007. The second possibility is that you might be able to file both
I-140 and I-485 applications and request employment permission in
the event that the second preference for China reaches December
15, 2006, by October or possibly November 2007 (H-1B holders have
10 days of satisfactory departure time). If neither of these scenarios
comes to pass, you should either seek some other means of maintaining
legal status in the U.S. (a sensible change of status request to
F-1 status comes to mind) or leave the U.S. until the time that
either one year has passed since the labor certification was filed
or the I-140 preference petition is approved. If either event occurs,
your petitioning organization could request an H-1B extension for
you even if you are outside the United States.
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