World Journal Weekly Q & A - November 30, 2008

Q & A 1. 2. 3. 4. 5. 6.


Q&A 1.

B-2 Overstay Has Graduated with Bachelor's Degree and Wants to Know Options for Work and Legal Status in the States

Lee reader asks:

I came to the U.S at 17 with a B2 tourist visa, but I stayed and went to high school in New York. After graduation, I attended New York City College majoring in Finance and has now just received my bachelor degree. However, my visa has been expired a long time ago. My questions are:

1. Base on my situation, if there is a company wants to hire me, can the company sponsor me for an employment base visa? Will I be deported during the application process period?
2. If there is a chance to apply for work visa, will the fee higher than normal application?
3. I plan to go back to school for a MBA degree. Will it help me when I adjust my status? Is it possible for me to obtain a F1 visa now?
4. Other than those mention above, is there any other ways for me to adjust status?

Dear reader:

1 A company can sponsor you for an employment based immigrant visa, but under present law you would not be able to complete the process unless you are the beneficiary of section 245(i) which allows most illegals to adjust status upon the payment of a fine (presently $1000). To qualify under section 245(i), your parent would have had to have filed a labor certification application or immigrant visa petition by April 30, 2001. If you do not have Section 245(i) benefits, your company could complete two of the three parts of your immigration - labor certification application and I-140 preference petition - but not the adjustment of status portion in the United States. If you left the U.S. to interview for the green card at an American consulate or embassy, you would be subject to a 10 year bar from re-entering the U.S. since you have overstayed your visa status in the U.S. for at least one year since April 1, 1997. If a company were to sponsor you, you would not likely be placed under removal proceedings just by virtue of the sponsorship during the application process, but you would not be able to complete the immigration process under present law without the benefit of section 245(i).

2 You cannot successfully apply for a non-immigrant working visa, eg.H-1B, as you would not be allowed a change of status in the U.S and leaving the U.S. to pick up an approved petition would subject you to the 10 year bar.

3 Going back to school for an M.B.A. degree may certainly help your chances of securing a position in the same vein that master's degreed individuals have advantage over persons with lesser educations, but it will not assist you in adjusting your status to permanent residence under the present law. There is no provision for such benefit at this time. Perhaps future legislation may allow advanced degree holders to immigrate more easily, but that would be in the future. It is also not possible for you to obtain an F-1 visa at this time as U.S.C.I.S. will not generally grant a change of status to individuals who are out of status, much less for someone who has been out of status for as long as you have overstayed.

4 Under present law, you would be able to adjust status if you married a U.S. citizen in a bonafide marriage; married a permanent resident who would become a U.S. citizen in the future (you would have to wait until such event); married someone who has an entitlement to Section 245(i) benefits and has not yet immigrated; married someone who later received a grant of political asylum; won a grant of political asylum yourself (unlikely since there is a one-year deadline to apply from date of entry to the United States with certain exceptions); or won a case for cancellation of removal in the immigration court based upon showing that you have resided in the U.S. for 10 years, been a person of good moral character during that time, and that your departure would cause exceptional and extremely unusual hardship to your U.S. citizen or permanent resident spouse, parent, or child.

Q&A 2.

Asylum Dependent Wants to Return to the Home Country and Ask About Risks and Procedures

Liang reader asks:

My political asylee husband applied for me and our children for immigration and I came in to the US in April, 2008. My mother who is in China is sick so I plan to go back to visit her in December 2009. My questions are:

1. What kind of procedure or documents do I need to do or bring in order for me to come back to the U.S. without any problem?
2. Will the going back affect me in obtaining green card after residing in the U.S. for one full year?
3. Can I file the green card application and travel document at the same time once I resided here for over one year?
4. If I can apply for travel document, what kind of documents do I need? How long will it take for the application?

Dear reader:

1 You would need to apply for a refugee travel document. Whether a local CIS office would allow an application for advance parole at this stage is up to the particular office as you have not yet applied for adjustment of status.

2 If you have resided in the U.S. for one full year, the trip back to China should not affect your eligibility for permanent residence as you are the derivative, and not the principal asylee.

3 Yes.

4 You must fill out form I-131 and supply 2 photographs, have a valid travel document and reason for return. You should allow approximately 90 days for the processing.

Q&A 3.

How Can My Nephews Immigrate With My Two Brothers Under the CSPA?

Zhang reader asks:

I applied my oldest brother & second older bother’s families to immigrate to US. Their cases have reached US Guangzhou Consulate.

Question1: My nephew’s (my second older bother’s son) birthday is 06/12/1986. And the date he filed his DS-230 form was on 06/11/2007 (one day prior to his 21st birthday). My second older brother’s priority date was 08/26/1997 but as of now they have not received interview notice. a) Will my nephew receive his interview notice from Guangzhou? b) If my nephew receives the interview notice, will he be granted for visa? c) If his visa was denied, should he appeal to the visa officer simultaneously? What would be his valid reasons for appeal? d) If an appeal was not allowed at the time of interview, when should we appeal and where to appeal? e) Is my nephew eligible for CSPA?

Question 2: a) My eldest brother’s son was born on 06/18/1985 and he did not receive his DS-230 form Guangzhou Consulate because he had turned 21. Is he under CSPA protection and where should we file the appeal papers? What is the successful rate for the appeal? b) Could my eldest brother appeal for his son on the date of his interview?

Question 3: Due to my recklessness, the information concerning our father’s name and the date of father’s death were incorrectly stated on my eldest brother’s DS-230 form. Will this cause their cases being denied? a) Should I re-submit additional document before his interview notice? b) Could their son accompany them to the interview or is there a chance using humanitarian reason for their son to receive the visa?

Dear reader:

1 For the month of December 2008, F-4 immigrant visas for China are only being processed for those having a priority date prior to 7/15/97. Your second older brother's priority date of 8/26/97 is not current for immigrant visa processing, and that is why he has not received the notice of interview. His son turned the age of 21 on 6/12/07. Age is only frozen for purposes of the CSPA when the priority date becomes current. Thus far, his son is already approximately one year and five months over the age of 21. A credit can be given for the time that the I-130 petition was pending and an additional 45 days (in most cases) under the U.S. Patriot Act. It is our remembrance that in 1997, Legacy INS was processing I-130 petitions very quickly. So unless Legacy INS took a long period of time to process the I-130 petition, I believe that your nephew is most likely aged out at this time. If by some chance he is eligible, he would be given an interview notice at the same time as his father. If there is still controversy over his right to immigrate under the CSPA at the time of your second brother's interview, you or he should consult with an immigration lawyer at such time to review the possible options.

2 The same principles as enunciated for your second older brother's son apply to your eldest brother's son.

3 Inasmuch as you are petitioning for your eldest brother on the basis that you have a familial relationship, incorrect information concerning your father's name could have an impact on his interview if the consular officer suspects that you are not really related to him. I suggest that your eldest brother bring all available documentation to prove the relationship to the interview. There appears to be little use to having the son accompany his father to the interview if he is not qualified under the CSPA as the consul will not give him a humanitarian visa to come to the States.

Q&A 4.

How Can My Grandmother Who Is On Dialysis Come to Live With Us in the States?

A reader from Taiwan asks:

My grandma is a dialysis patient in Taiwan. My father is thinking to bring her to the US and live with us. Can she immigrate to U.S. with her health condition? Will the US government subsidize?

Dear reader:

Under U.S. immigration law, your grandmother would most likely be refused entry into the United States if a consular officer knew of her condition. From your question, it seems apparent that you are not millionaires who can pay for her every expense. She would be barred under the public charge provision which prohibits the entry of aliens who would potentially fall into financial distress and become a burden upon the public. The U.S. government would not subsidize her living in the U.S.


Q&A5.

I Want to Go Back to China for a Long Time for a Job - How Do I Keep My Green Card?

Cai reader asks:

My family immigrated to US in July 2007 and obtained our green cards in August 2007 and have been living in New York. Now I need to go back to China for my job for a long period of time. a) How long can I stay in China if I do not have other document except my green card? And if I return to China again, how long could the interval be? b) Where can I apply for my reentry permit? What documents do I need for it so that my application will be easily approved? How much is the fee and how long will it take?

Dear reader:

A green card allows the holder to return to the U.S. after a trip up to but not including one year. A reentry permit allows the holder to return to the U.S. after a trip up to but not including two years. However, these are the maximum periods of time that a holder can return to the U.S., and the holders are not guaranteed trouble-free reentries after such lengthy trips. U.S.C.I.S. believes that a green card holder makes a new entry into the U.S. after being out for six months and can be properly questioned concerning retention of permanent residence. Even individuals who do not leave the U.S. for six months at a time can be questioned if they have developed a pattern of very short visits to the U.S. on their reentries. A reentry permit is useful as it shows the inspecting officer that its holder contemplated being outside the U.S. for a lengthy period and made the application prior to travel. It must be filed during the time that the green card holder is in the United States. After filing, U.S.C.I.S. does not encourage travel as applicants are required to attend a biometrics appointment approximately one month after the application is submitted. The fee for a reentry permit is currently $305 plus biometrics fee of $80. The address to which it should be sent is

Post Office box

U.S.C.I.S. Nebraska Service
P.O. Box 87131
Lincoln, NE 68501-7131

Private courier

USCIS
Nebraska Service Center
850 S. Street
Lincoln, NE 68508-1225

The current processing time is approximately six months.

Q&A 6.

I'm 74 and My Spouse is 84 and We Have Green Cards - How Can We Waive the Naturalization Test and How Can We Stay in China and Still be Naturalized?

Feng reader asks:

I obtained my green card in January 2008 at age 74. Can I waive my naturalization test or using my mother tongue for the test? I started coming and going between China and US in 1996 on B-2 visa. The first time I came in to the US was in 10/96 and left for China in 9/98. The second time was in 10/00 and departed in 4/02, the third time was in 05/2004 and departed in 10/05. The forth time was in 6/07 to present. Does that mean I have resided in the U.S. for 12 years from 1996 and be allow taking the test in my mother tongue? My spouse is already 84. Can he be waived for the test completely or using a doctor’s note stating that he could not remember any of English words? Do you think we have a chance to be naturalized?

If we would leave U.S. on July 15, 2009 and come back on June 15, 2010, do we need to apply re-entry permit? If we stay in China for more than one or two years, will that affect our applications for citizenship? Also, If we could not return on schedule due to health problems, will it affect our naturalization? Was the requirement for naturalization to hold green card 5 years or stay in U.S. continuously for 5 years? Will the time outside of the U.S. be deducted? We heard under our situation we can apply for social security benefit, SSI and Medicaid. Can we now apply for government’s benefit? Please response us by letter in details in case we miss the World Journal paper.

Dear reader

Unfortunately you cannot waive your naturalization test or use your native language for the test unless you have a medical disability that would prevent you from reasonably being able to take the test or have held the green card for much longer than both you and your spouse. U.S.C.I.S. only counts the time of continuous residence from awarding of permanent residence. An exemption from the English requirement is allowed for applicants who are at least 50 and have held the green card for 20 years or 55 and held the green card for 15 years. A more simplified test is given to applicants in their native language who are 65 and have held the green card for 20 years. Your spouse's test may be waived if he has a medical disability claim, for example dementia or Alzheimer's. For such diagnosis, he would have to go to a medical doctor, doctor of osteopathy, or clinical psychologist who would examine him and fill out the necessary information on form N-648, medical certification for disability exceptions. The medical professional must be able to attest to the origin, nature, and extent of the medical condition and explain how the medical condition affects your spouse's ability to demonstrate English proficiency and/knowledge of U.S. history and government. In particular, the medical professional should establish and certify your spouse's diagnosis, explaining in plain English and layman's terms how the medical professional diagnosed the anatomical, physiological or psychological impairment and explaining how the diagnosed condition affects his ability to learn or demonstrate proficiency and/or knowledge of U.S. history and government. The medical professional should also cite the medically acceptable and clinical or laboratory diagnostic tests or other diagnostic methods used and the resulting conclusions drawn from these diagnostic tests which assisted the medical professional in reaching the definitive diagnosis.

If you will be leaving the U.S. for one year (365 days), you will need to apply for a reentry permit to be allowed back into the U.S.. Naturalization applicants must show that they have continually resided in the U.S.. Being outside the U.S. for over one year even with a reentry permit would be seen as an abandonment of your continual residence for naturalization purposes. It should be noted for other readers that trips outside the U.S. for six months and more but less than one year constitute presumptive abandonment for naturalization purposes, although a good explanation can usually be accepted by the naturalization examiner at the time of interview. The basic rules of naturalization for most applicants are that they are required to hold the green card for five years with no absences being so long as to constitute abandonment for naturalization purposes (continuous residence) and be in the U.S. for least one half of the time prior to applying for naturalization (physical presence). Any trip outside the U.S. should not be for six months or more. Time outside the U.S. short of abandonment is not deducted for purposes of continuous residence, but does not count for physical residence. You have also asked what benefits you can apply for under the green card . As recent green card holders, you would generally be barred from any means tested benefits.

 

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.