World Journal Weekly Q & A - December 2, 2007

Q & A 1. 2. 3. 4.


Q&A 1.

Is it Possible to Naturalize Mother-in-law Who Did not Return to U.S. for Over Two Years in Involuntary Absence Due to Paralyzing Stroke ?

Chen reader asks:

My mother-in-law is eighty five years old and holds a green card for more than twenty years. She had a stroke three years ago and became paralyzed. She does not speak English and because of the stroke, she could not even speak Chinese clearly. She lived in China from 2004 to 2006 for over 2 years. She came back to the U.S. in 9/2006. When can she apply for naturalization? Does she need to take the test in English?

Dear reader:

The statute and regulations unfortunately do not provide for such an exception where absences are 1 year or more from the U.S. Such absences do break the period of continuous residence required for naturalization. Legacy INS interpretations allow exceptions for involuntary absences, but courts have interpreted this to only include situations in which the individual also left the United States involuntary. In a case that was granted many years ago, the court granted the exception where the applicant was taken from U.S. soil involuntarily during World War II. Although there may not be an exception for naturalization purposes, your mother-in-law was allowed to reenter the U.S. as a permanent resident as that was a separate issue. She is allowed to apply for naturalization 4 years and 1 day after having returned to the U.S. If the paralysis is such that she would not be able to effectively take a test then, she could apply for an exemption on form N-648 medical certification for disability exceptions. Such would include an evaluation from a medical doctor, doctors of osteopathy or licensed clinical psychologist with a prognosis of her medical condition. If the paralysis does not prevent her from taking the test, she would be able to take a simple test in the Chinese language given to the elderly as she has held the green card for over 20 years.

 

Q&A 2.

Options For an L-1B Intra-company Transferee Who Wishes to Stay in the U.S. After Time Expires on Visa Status

Lin reader asks:

I’m 27 years old Philippine Chinese with a computer science bachelor degree. I worked for an American company in Philippine whom sponsored me for a L-1B visa. After 3 years, the company extended one more year for me. It has been 4 years and I like it here. I heard L-1B visa could only be extended up to 5 years. I want to stay and work for a different company. Is there a way to adjust status here? What type of status can I adjust into? If I go back school for a Master degree, can I adjust my status?

Dear reader:

In your case, there is a possibility that you may be able to switch from L-1B to H-1B status as a professional with at least a bachelor's degree or its equivalent working in a specialized occupation if you are able to obtain sponsorship from an organization that needs your computer skills. Because there are limited numbers of new H-1B visas, you would have to find a sponsoring organization which could put in papers for you on the first day for which application can be made - April 1, 2008. In this past year, the entire allotment of H-1B visas for non U.S. master's individuals was used up on the first day. So if you wish to apply for H-1B visa status, it is essential that your sponsoring organization submits the petition for you on the first day (unless Congress expands the quota before April 1st). If you are the recipient of H-1B visa selection, you must note that it will only become available on October 1, 2008. The U.S.C.I.S. in the recent past has not allowed selected individuals to remain in the U.S. between April-October unless they are holding another valid nonimmigrant status. Your continuing to work for your L-1B sponsor in the interim would allow you to maintain legal status. You have mentioned the possibility of changing status to student for a master's degree. If you wish to do so, you can apply at any time to the U.S.C.I.S. for a change status on form I-539 application to change or extend status to your local U.S.C.I.S. service center.

Q&A 3.

Simple Rules for Adjustment of Status, Legal Stay and Advance Parole

Liu reader asks:

My wife has petitioned for an investment immigrant. She has received an approval and her biometrics is done. Currently she is waiting for an interview notice.

My questions are:

1. Her B1/B2 visa will be expired soon, does she need to leave American?
2. If she leaves, does she need any other documents? If she does not leave, what should she do so that she would not be overstayed? Should she file paper with local CIS?

Dear reader:

1 From the tenor of your question, it appears that your wife has filed an I-485 adjustment of status application to permanent residence and she is waiting for an interview. If her status was legal at the time of I-485 filing, she is allowed to remain in the States for the interview. Expiration of a non immigrant status following the filing of an I-485 application has no effect upon the approvability of the I-485. I do note that the U.S.C.I.S. expects I-485 applicants who work to have the appropriate employment authorization document even after the I-485 is filed.

2 During the period of time for adjustment of status, most individuals who are eligible to leave the country and return without being barred must apply for advance parole on form I-131 application for travel document. Exceptions are made for H-1B and L-1 holders who are allowed to travel under their respective nonimmigrant statuses. Other applicants who travel without advance parole are deemed by U.S.C.I.S. to have abandoned their adjustment of status applications. But applicants must be cautious. Most individuals who are illegally in the U.S. for 180 days or one year after April 1, 1997, are barred for three and 10 years respectively if they leave and attempt to reenter the U.S. and should not attempt to apply for or travel on advance parole documents.

Q&A 4.

USC Divorcing Wife and Marrying Her Sister in China Not an Easy Road for Her Immigration

Sun reader asks:

I am a U.S. citizen since 1998 and currently live in Los Angeles. I have divorced my ex-wife of 26 years for over a year. However, I want to marry my ex-wife’s sister whose prior marriage ended in divorce many years ago. She is an outgoing, hardworking and beautiful lady. She lives in China. I have a steady job and can sponsor her without problem. My questions are:

1. Should I apply for her through fiancée status or it will be better if I go to China, married her and apply for her as my wife?
2. Will it be difficult at the Consul because of her relationship with my ex-wife?

Dear reader:

The situation you describe is one that would be very troublesome to the American consulate in China. The immediate suspicion is that you are not only engaging in a fraudulent marriage, but a fraudulent divorce. To convince the consulate would be extremely difficult in my estimation, but if your relationship is real, I believe that the best path for you to follow would be to go to China and stay with your love after marriage for at least six months before beginning to sponsor her immigration. During that time, you should be able to amass strong documentation of your bonafide relationship.

 

Copyright © 2003-2007 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.