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.
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