World Journal Weekly Q & A - mAY 11, 2008

Q & A 1. 2.

Q&A 1.

Can U.S. Citizen Wife and Children Make Up for Husband's Insufficient Time of Residence for Naturalization?

Lee reader asks:

My family of four immigrated to the U.S. in 1997 and we all have green cards. My 2 sons and I received our citizenship papers in 2003. However, my husband worked very hard between Taiwan and China, so he only stayed in the U.S. for 687 days between 1997 to 4/2007.

In 4/2007, my husband applied for his naturalization. But after interview, his case was rejected because between 2002 and 2007, he only stayed in U.S. for 1577 days. My questions are:
1. Do he must stay in the U.S. for at least 2.5 years for the past 5 years?
2. Can his wife and 2 children’s U.S. citizenship status make up or help the insufficient time?

Dear reader:

I suspect that you have made a mistake on saying that your husband stayed in the U.S. 1577 days between 2002 and 2007 since you said he only stayed 687 days between 1997 to April 2007. Probably you meant 577 days. Assuming that is the correct figure:

1 An applicant for citizenship must spend at least one half of the required period of residence, which in this case is five years, in the U.S. to qualify for naturalization. (An applicant also cannot have left the United States for a year or more during the period unless he/she has an approved N- 470 application to preserve residence for naturalization purposes). Half of five years is 912.5 days. Even individuals who have this figure or slightly over may have a difficult time at interview convincing the naturalization examiner that they have indeed preserved residence for naturalization purposes.

2 Even though you and the two children are citizens, you cannot make up or help with your husband's insufficient time. Your presence in the U.S. can only help him once he obtains basic eligibility for naturalization and is not statutorily barred.

Q&A 2.

In Upcoming Marriage Interview, Will I Receive Permanent Green Card Even Though Interview Date is Nine Days Short of Two Years Marriage? What Proof is Good?

Zhou reader asks:

I came to U.S. under F-1 visa in 9/1999. I have a U.S. master degree and received H-1B in 2004. My visa was valid until 12/2006. In 4/2006, I married a U.S. citizen and had a green card interview in 12/2006. Unfortunately, the examiner stamped my passport as green card pending and later received a second interview notice for 4/2008. My questions are:

1. If we pass this interview, will I be receiving conditional green card or permanent green card? Our marriage will be 9 days short to reach 2 years.
2. My husband is 15 years senior than I and he had sponsored his 3 brothers before. What kind of documents should prepare for my interview? Is one-year tax return enough? Banking, telephone statements and medical insurance very important? Are they the evidences to proof bona fide marriage?
3. My I-94 was taken away from me by the examiner during the 1st interview. I have 2 A numbers, one is from my H-1B visa, the other from this marriage application. Are those procedures correct?

Dear reader:

1 You would probably receive a permanent green card if you passed the second interview since the merits of the marriage are being tested and not the ability to adjust status. Usually the processing of the adjustment of status application is not done at the same time as a separately scheduled marriage interview. In the unlikely event that the examiner indicates that he/she will approve not only the marriage petition but also the adjustment of status on that day, you or your attorney could request that the adjustment of status approval be held off until you pass the two-year mark. The downside of such a request is the possibility that the officer may lay your case on the side and not get around to it again for months.

2 You should bring anything and everything that you have in order to show that you and your husband are living together and have a joint life together. That evidence can include joint tax returns since 2006, lease or deed, rent receipts, utility bills, telephone bills, banking statements, life and health insurance, car registrations, driver's licenses, state identity cards, photographs, etc. You may also obtain sworn statements from family, friends, relatives and neighbors who can attest to the bonafide character of your marriage.

3 Immigration examiners will usually take away an I-94 at the time of I-485 interview. It is difficult for me to guess as to why you would have an A file number from your H-1B visa, because that usually does not happen. However, a more common occurrence is that individuals receive an A number upon obtaining a practical training card pursuant to F-1 status. That A number (in the 100 series) is not regarded as a true A file by U.S.C.I.S. examiners adjudicating I-485 adjustment of status applications.

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.