World Journal Weekly Q & A - March 28, 2010

Q & A 1. 2. 3. 4.


Q&A 1.

Brother-in-law Owes $20,000 in Child Support Related to Former Marriage. Will That Affect His New Wife's Immigration?

Florida reader asks:

My brother-in-law went to China and married his girl friend of two years last December.  Now he is ready to file immigrant papers for his wife.  However, a lawyer told him that he must pay off the child support arrearage of over $20,000.00 or reach some agreement with his ex-wife, or else the Immigration would not approve his application.  But another lawyer said USCIS did not have that kind of information and that he could now apply for his wife.  The lawyer also said as long as his marriage was bone fide and he had enough financial support, his wife could come to U.S. in one year.  Is it true?

Dear reader:

I find that I cannot entirely agree with either of the lawyers that your brother-in-law has visited.  On the subject of whether Immigration will approve the I-130 petition, I am not aware of any law which preconditions I-130 filings and approvals on the U.S. citizen's paying child support arrearages.  However, the question may arise in the course of consular processing his wife's case after I-130 approval.  Questions of child support and the amount owed may certainly be considered in the question of your brother-in-law's ability and willingness to support his new wife.  Pending arrearages may cause a consular officer to deny the wife's application for lack of a credible affidavit of support, the logic being that if he is unwilling to support his own children, how could he be relied upon to credibly support his wife. 


Q&A 2.

Does the Child Whose Parent Has An Approved I-130 Immigrant Visa Petition Have to Mention that He Has Already Applied for Immigration When Applying for F-1 Student Visa?

Wang reader asks:

In 9/02 my daughter filed papers for her older brother’s family under F4 category.  In 6/09 she received the I-130 approval notice and the case has been transferred to NVC for priority date to become current.  My son’s son (my grandson) was born in 3/87 and according to “CSPA” he seems to qualify for it.  He will be graduating from college in 6 months.  Per current processing time, he needs to wait 3 years or may be longer.  We are thinking to have him to pass the TOFEL test and come to U.S. to study.  My questions are:

  1. On his F-1 visa application, should he mention he has already applied for immigration?  If so, will his F-1 be denied?
  2. If he comes to U.S., can he adjust status in the U.S.?
  3. If his visa application did not mention he has already applied for immigration, will he get into trouble when he goes back to Guangzhou for immigrant interview?
  4. If his immigrant visa is denied, can he still be allowed to come to U.S. to study?

Dear reader:

1.  He does not have to mention that he has already applied for an Immigration because he has not.  The I-130 petition was a petition for his father and not for him.  Your grandson would only begin applying for immigration when the priority date is very close and he begins to file his own papers on either DS-230 if he is overseas or I-485 if he is in the States. 

2.  Any person who is in the United States and maintaining legal status is eligible to adjust status to permanent residence if there is a basis and the priority date is current.  In your grandson’s case, he must also submit proof that his qualifying parent is a green card holder when he files.

3.  See answer one. 

4.  Since an F-1 student must have non-immigrant intent, it would be difficult for a consular officer to issue an F-1 visa to an applicant who was just denied for an immigrant visa. 

Q&A 3.

What Options Are There for a Conditional Resident Through Marriage Who Will Have a Child With Another Man But Must Later Apply to Remove the Conditional Basis of Residence Status?

A conditional green card holder asks:

Last October, I passed my interview and received my conditional green card.  My husband is disabled and does not want to have a child to increase our burden.  But I now through work met a boyfriend and am pregnant with his child.  I want to keep this child and will not ask my husband to financially responsible for my child.  But I am afraid my husband would refuse to allow me to give birth and affect my removal of conditional green card application this October.  What should I do?

Dear reader:

You appear to be in a difficult position immigration-wise, and that is because you must still remove the conditional basis of your residence status.  With a child born and registered to a person other than your husband, it might be difficult for an immigration officer to believe that you have a bonafide marriage in which you intend to live with your husband in a true marital relationship if the petition is jointly filed with the husband. Other avenues that are open are filing on the basis of divorce and showing that you had a bonafide relationship previously; on the basis of the Violence Against Women Act if your husband is abusive toward you; or on the basis of extreme hardship in returning to your home country due to circumstances that have arisen since you obtained your conditional residence.  Dependent upon the particular factors of your case, you may be eligible to file under one of the other criteria.

Q&A 4.

Political Asylum Green Card Holder Wants to Apply for 3-Year Naturalization Based on Long Marriage to U.S. Citizen Husband. Can She Do It?

Wendy reader asks:

I received my political asylum green card in 2007.  I registered my marriage to my U.S. citizen husband in 2003.  When can I apply for naturalization?  Would it be within 3 years of receiving my green card or 5 years?

Dear reader:

Generally speaking, a person who 1. obtains the green card for three years, 2. whose spouse has been a U.S. citizen for three years, and 3. who has lived together with the U.S. citizen for three years, is eligible for U.S. citizenship.  In such case, you would be eligible to apply 90 days prior to the three years as long as conditions 2 and 3 have been met for the entire three years.  I do note that you received a political asylum green card in 2007.  Asylum green cards usually already have a one year rollback date.  If you are relying on the rollback date, I suppose that it is theoretically possible to count three years forward from that date to file for naturalization, although a naturalization officer may wonder as to whether it actually complies with the requirement of having the green card for three years. 

 

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.