World Journal Weekly Q & A - August 23, 2009

Q & A 1. 2. 3.


Q&A 1.

I Was Arrested for Shoplifting a Few Months Ago - Am I Still Eligible for Naturalization?

One reader asks:

I have political asylum green card for 5 years but have not applied for naturalization. A few months ago, I forgot to pay one of the clothes in my shopping cart and was stopped at the door. Because my English was not good so I didn’t explanation. I was charged with the theft and went to court. I was jailed for two days and was fingerprinted. My questions are:
1. If I travel aboard, will I be denied entry because of this incident?
2. If yes, does that mean my green card will be revoked?
3. If not, can I apply for naturalization in the future?
4. If I can, how long should I wait from the date of incident which will be best for me?
5, If my naturalization application is denied, can I still renew my green card when it is expired?

Dear reader:

1 With this type of offense, you would not be denied entry.

2 See answer one.

3 Every applicant for naturalization must show good moral character for the five-year period prior to the naturalization application filing. Good moral character is judged by local community standards. Even if you pleaded guilty, the U.S.C.I.S. officer adjudicating your naturalization application or his or her supervisor would decide whether your deviation would be enough to show a lack of good moral character. If the charges were dismissed, you would still be eligible for naturalization at this time. If the incident is adjudged to constitute a lack of good moral character, you could again apply for naturalization five years after committing the theft.

4 See answer 3.

5 You would still be able to renew your green card when it expires as the arrest even with an unfavorable court judgment would not constitute sufficient cause to revoke your residence status.

 

Q&A 2.

As an Overstay, Am I Eligible for the Green Card Lottery Program, and Can I and My Family Get Legal Status If I Win?

Xiao reader asks:

I came to U.S. with a visitor visa in 2004, and my wife and son also came in under visitor visas in 2005. My whole family is now overstayed.

I know the U.S. government has a green card lottery program every year. Am I qualified for the lottery? If I am lucky to win the lottery, can my family members receive legal status?

Dear reader:

If you are natives of China, you are not eligible for the visa lottery. Such is confined to countries which have not sent many immigrants to the U.S. recently, and that would preclude persons born in China. I do note that you would still retain eligibility if you or your wife were born in Hong Kong or Taiwan. A second problem if you are selected is your illegal status. Unless you or your wife is the beneficiary of section 245(i) by having filed a labor certification application or immigrant visa petition by April 30, 2001, you would not be allowed to interview in the U.S. for your green card. Because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imposed 3 and 10 year bars on entering the U.S. for most individuals staying illegally in the U.S. who were illegal for 180 days and one year respectively after April 1, 1997, you would not be allowed to reenter the U.S. for 10 years unless you are eligible for the waiver of the bar. Problems with requesting a waiver are the time constraints of the lottery program in which the winners must complete their immigration by September 30th in the year of their eligibility, and that a waiver application is not guaranteed to succeed as it is based upon extreme hardship to a U.S. citizen or permanent resident parent or spouse.

 

Q&A 3.

Can I Transfer My I-130 Petition for My Daughter to My Husband Since He Became a U.S. Citizen, and What is the Effect of My Daughter's Marriage?

Hua reader asks:

My family of three’s immigrant application was approved in May of 2003. Unfortunately, my daughter had aged out at the time of her approval, she could not immigrate with us but stay in China. As soon as I arrived in New York, I filed I-130 for my unmarried daughter and received a receipt.

My husband is now a U.S. citizen and I am still a green card holder. My daughter has since become married. He wants to file a I-130 for our married daughter. Can we transfer my previous F2b application to my husband’s F3 category? Or my previous application had become invalid and my husband must file a new I-130 for her now?

Dear reader:

As you never became a U.S. citizen, your daughter's marriage automatically invalidated your I-130 petition. Insofar as transferring your petition to your husband as he has become a citizen, that cannot be done for the above reason and also because transfer of a petition between parents for a child is not allowed. The better course would have been for both you and your husband to have filed separate petitions for your daughter if transfer was the only issue. However, even in that case, your daughter's marriage would have invalidated both petitions unless your husband received his naturalization prior to the date of your daughter's marriage. Only under that circumstance could his petition have been upgraded from F-2B unmarried daughter of a lawful permanent resident to F-3 married daughter of a U.S. citizen.

 

Copyright © 2003-2012 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.