World Journal Weekly Q & A - February 3, 2008

Q & A 1. 2. 3. 4. 5.


Q&A 1.

Does My Mother Need to File the I-90 Form for Replacement Green Card After Coming in Under SB-1 Visa?

Lin reader asks:

My mother holds her green card since 8/1993. She last returned to China for a long time and her green card was expired. She pleaded at the Consulate in Guangzhou, fortunately she received a SB1 visa and returned back to the U.S. successfully.

The Immigration custom officer stamped an A number with 8 digits on her passport. Not soon after, she received a welcome notice. On the notice, it stated a clause that if the alien came in as SB1, the alien would not receive a new green card. The original green card can continue to be used, unless the original green card is expired or lost. If that is the case, a I-90 can be filed for a replacement. My questions are:
1. Her passport has a A number, does it mean the Immigration is making my mother a new green card and my mother does not have to file I-90?
2. Or because my mother’s green card has already expired, she must file an I-90 for replacement as the welcome notice indicated?
3. Will there be a chance of denial if she files for I-90? Or do you suggest her to hire an attorney to do it because it might be risky?

Dear Reader:

An I-90 (Application to Replace Permanent Resident Card) is filed for an expired I-551 at some point in time. According to the Foreign Affairs Manual and Immigration officers with whom we have spoken, a consular officer may take an I-90. This is usually done if a person is overseas and has lost a green card. In the case of someone whose card has expired and has received an SB-1 visa, the person can present the SB1 visa and expired card at the port of entry such as an airport. An I-90 may be paid for at the port of entry. Whether the I-90 is taken at the Consulate or at the Port of Entry, a new card is supposed to be sent to the applicant in approximately 60 days. If an I-90 was not taken by the Consulate or at the Port of Entry, the alien may be admitted and instructed that he/she must file an I-90. In the situation you describe, the “A” number in your mother’s passport does not answere the question of whether she needs to file an I-90. Failure to file an I-90 when the application is required would place her in a limbo state of being here, but not having a valid card. While USCIS would probably not do anything negative against your mother, her ability to travel, seek employment, or obtain benefits could be impacted. I would suggest that an Infopass appointment be made so that your mother can visit the local office to see if an I-90 is pending and a new card is being produced. If there is no I-90 pending, she should file an I-90. An Infopass appointment may be scheduled on the internet at www.USCIS.GOV. If there is no internet access, she may go to the local immigration office, where there are kiosks from which to schedule an appointment. An attorney can usually assist with the process although the amount of risk for your mother in filing an I-90 by herself is minor at best.

Q&A 2.

The Effect of Long Absences on the Naturalization Application

Lee reader asks:

My wife, son and I received our green card in 1995. Because we must take care of my mother in Taiwan (who had cancer) and son was only 15 at the time, so we did not live in the U.S. We did applied for I-131 reenter permit twice. In November 2000, we returned back to U.S., purchased a house, worked and went to school. Since then, my son has not left the country; my wife and I left U.S. only 4 short trips outside U.S.. We now want to apply for naturalization. Will the long absence 7 years ago disadvantage our naturalization applications? If it does, what should we do?

Dear reader:

As long as you did not expire the length of time that you were allowed to come back to the U.S., your past absences should not count against you when you apply for naturalization. By expiring, I mean coming back to the United States under a non immigrant visa or coming in through Canada or Mexico by some means after the green card expired. If you had expired your green cards, you would actually be deportable even now. The N-400 Application for Naturalization asks in part 7 for you to list "All the trips of 24 hours or more that you have taken outside of the United States since becoming a lawful permanent resident. " Otherwise, if you did not expire your status, the naturalization examiner will concentrate on your absences during the five-year period of residence before you filed the naturalization application.

Q&A 3.

The Date to Apply for Naturalization if the U.S. Citizen Spouse Dies

Liu reader asks:

My son and I immigrated to the U.S. in 3/2005 via my marriage to a U.S. citizen. At the time, we received our temporary green card. Unfortunately, my husband passed away in 8/2005. In 12/2006, I passed the CIS interview and received my permanent residency. Now it is almost 3 years. Should I apply naturalization in 2 years 9 months or 4 years 9 months? My son has just turned 18 years old. If I can apply in 2 years 9 months, can my son naturalize at the same time with me?

Dear reader:

Your time to apply for naturalization is now four years and nine months because of the passing away of your husband. The immigration laws do not allow for three year naturalizations based upon marriage to a U.S. citizen where the spouse has died.

Q&A 4.

The Date to Apply for Naturalization for an Approved Political Asylee - Effect of Rollback

Henry reader asks:

My friend received his political green card in 2/07. However, it is confusion to him because his card indicates the permanent status starts from 11/2006 and it is valid until 11/2017. Can my friend apply naturalization in 2011?

Dear reader:

For political asylum cases, U.S.C.I.S. will generally give a one year rollback which is reflected in the date on the green card as to when residence status begins. Because of this, your friend's starting date is November 2006 and he can apply for naturalization in 2011.

Q&A 5.

Whether Person With a Final Order of Removal can Apply for Adjustment of Status if He/She is the Spouse of an Asylee and Already Has an Approved I-730 Petition As a Derivative for One Year

Yang reader asks:

I came to U.S. 7 years ago. At the entry, I was arrested in Puerto Rico. I went to court but lost. However, in 2007, I won my federal court appeal and my case was remained to the Board of Immigration Appeal. Unfortunately, BIA again denied my case. My husband won his case at court. He applied I-730 for me and it was approved in 2007. Currently, I have an A5 card. What should I do now? Can I apply green card in 2008?

Dear reader:

The law provides that for individuals like you who have been in deportation, exclusion, or removal proceedings and are technically considered still in those proceedings, you must have your cases reopened before you can apply for the green card.

 

Copyright © 2003-2008 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.