World Journal Weekly Q & A - December 26, 2010

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


Q&A 1.

K-1 Fiancee of U.S. Citizen Who Did Not Marry Sponsor Asks About Her Options After Marrying a U.S. LPR and Having Three U.S. Born Children.

Lin reader asks:

I came to U.S. under K-1 visa in 3/2001.  At that time, my fiancé lived in Los Angeles, but I arrived at New York airport.  Later, we did not get married. In 2004, I married my current husband and have 3 U.S. born children.  We registered our marriage in 2007.  My husband had 245(i) and now holds employment base green card.  Am I qualified for I-601 and I-130 to adjust status in the U.S.?  Or can I apply 10 years green card in 3/2011 before my husband became U.S. citizen?  My husband’s English is not good.  Or do you have better suggestions?

Dear reader:

As you entered the United States under a K-1 visa and did not marry the sponsoring party, U.S.C.I.S. will not allow you to adjust status to permanent residence under your present husband's I-130 petition.  An I-601 application for waiver of grounds of excludability would not afford you relief as the law will not give any effect to an I-601 in your situation.  In order for you to apply for a 10 year green card, you would first have to be placed under immigration court proceedings since that application is before the immigration court and not the Immigration Service. 

The first difficulty may be in being placed under proceedings.  Walking into a U.S.C.I.S. office may not help since U.S.C.I.S. generally believes that it is not its duty to place people under proceedings.  Similarly U.S.I.C.E. may be very interested in pre-dawn raids to catch illegals, but does not appear eager to process individuals who come into its offices asking to be placed under proceedings.  If you are in proceedings, you would then have to satisfy the standard in effect since 1996's passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which changed the standard for relief under this category (formally called "cancellation of removal") from "extreme hardship" to "exceptional and extremely unusual hardship" to a U.S. citizen or permanent resident spouse, parent, or child.  As I am a conservative attorney, I cannot suggest that you attempt a 10 year green card case unless there is hardship other than a permanent resident husband and three children.  At this time, I have no suggestion that would afford you a good chance of obtaining your permanent residence without considerable danger. 

 

Q&A 2.

On the I-864 Affidavit of Support Form, How do I Count My Income - Is It the Annual Income or the Tax Filing Amount?

Rong reader asks:

I am a U.S. citizen and understand that as a financial sponsor, I need income of $19,000 to sponsor my unmarried adult daughter.  Is the $19,000 the annual income or the tax filing amount?  Because after some adjustments, my net filing income is less than $19,000.  What should we do if my daughter becomes pregnant or had given birth to a child when her priority date becomes current?

Dear reader:

The amount to put on the form is your gross taxable income before the section for "Adjusted Gross Income" on the Form 1040 tax return, and is shown on line 22 "Total Income".  If by "Net Income", you mean line 37 "Adjusted Gross Income," that is the wrong line for calculating on the I-864.  As your total income is $19,000, that amount should be put on line 22 and is sufficient under the poverty guidelines to sponsor your daughter.  If your daughter becomes pregnant or gives birth to a child when her priority date becomes current, the addition of a child to immigrate means that the $19,000 without more - eg. other assets, would not be sufficient for immigration and that you would either have to find a co-sponsor or your daughter will face the possibility of separation from her baby (if only she is coming to the U.S. without the baby) or immigrant visa denial for failure to meet the public charge requirement.

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Q&A 3.

Principal Alien Does Not Want Husband to Immigrate Now and Wants to Know the Limitation on Time for Him to Use the Follow to Join Category.

CA reader asks:

I filed immigrant papers in 2003 for my married daughter, son-in-law and their daughter.  Now the priority is almost current.  However, the U.S. unemployment rate is high now, finding job might be difficult.  My daughter is hoping to adopt the method of “ follow to joint” that she come with her daughter first and her husband continues working in China and come later.  How does the “follow to joint” work? What are the procedures?  How long can my son-in-law stay in China?

Dear reader:

Your daughter is following an old path in which the principal alien would immigrate, and after obtaining a foothold in the States, call for the rest of the family.  There is no limitation of time for your son-in-law to stay in China and still be eligible for the follow to join category.  When your daughter is ready in the future, she would have to familiarize herself with the procedure in place at that time to an employ the follow to join procedure.  Currently notification must be made to the U.S. Department of State which then notifies the appropriate consulate or embassy in the home country that the principal alien in the U.S. wishes her dependent to now immigrate.  Relevant information to be sent to the Department of Sate would include a letter requesting the action along with documentation of relationship, proof of the principal alien's entry, any paperwork pertaining to the issuance of the immigrant visa, and a copy of the permanent residence card.  U.S.C.I.S. previously provided an informal procedure to accommodate these situations, but decided years ago that such was not its responsibility. 

Q&A 4.

Can B-2 Visa Holder Adjust Status in U.S. When Sponsored by a Green Card Holder Wife?

Ann reader asks:
I am a green card holder.  After filing I-130 for my husband, I have received receipt with priority date and preference classification etc.  When can we submit I-485 papers?  My husband came to U.S. on 9/03 with a B-2 visa.  His I-94 permits him to stay for 6 months.  Can he stay in the U.S. to adjust status?

Dear reader:

For your husband to adjust status in the U.S., he must maintain legal non-immigrant status until the time that his priority date becomes current under the F-2A category for spouses of green card holders.  If his stay expires prior to the priority date becoming available, he would be ineligible for adjustment of status since you are only a green card holder and not a U.S. citizen.  On the other hand, spouses of U.S. citizens can adjust status in the U.S. even if they overstay so long as they have been paroled or inspected and admitted to the country. 

Q&A 5.

Reader Wonders Under What Circumstances U.S.C.I.S. Will not Approve Naturalization on Date of Interview Even Where Applicant Passes English and U.S. History and Government Tests.

Mr. Wong asks:

After the naturalization test, the immigration officer handed me an N-652 form.  The form indicated that I passed the tests of English and U.S. history and government.  However, under it there were two options; one is that “Congratulations, Your application has been recommended for approval” and the other “A decision cannot yet be made about your application”.  My form was marked as “A decision cannot yet be made about your application”.  Could you explain it to me in what situations the officer could not make a decision on the date of interview?

Dear reader:

The test of English and civics is only part of a naturalization interview.  An examiner will also look over the applicant's entire file, which contains information predating in most cases the issuance of permanent residence.  Discrepancies between the information provided in previous applications to U.S.C.I.S. and the information on the naturalization application may certainly be cause to continue the case.  The case can also be continued for information which arises from the N-400 answers themselves.  In other cases, relatively new examiners will take time to examine the files and to consult with more senior examiners and supervisors prior to making a decision.  A more mundane reason for not adjudicating on the same day may be that the computer systems are down and so confirmatory information which is in the U.S.C.I.S. database cannot be accessed.  In the past, a large reason for cases being continued was that the background checks had not been completed prior to the date of interview.  As the result of multiple lawsuits, U.S.C.I.S. as a matter of procedure will not schedule someone for interview whose background checks are not complete.  So there are myriad reasons for which cases are continued without same day decision, and the best thing to do is to make sure to obtain the name of the examiner so that there is a point of contact for further inquiry if a final decision is not reached within 60 days. 

 

Copyright © 2003-2010 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.