World Journal Weekly Q & A - January 23, 2011
Q & A 1. 2. 3.
Q&A 1.
Cousin is an F-1 Student and is Worried About Being Able to File for Political Asylum Within One Year of Coming to the U.S. - Wonders If He Has No Hope of Filing After One Year.
Li reader asks:
My cousin came to U.S. under F-1 visa. But because of financial difficulty, he could only study for one year. He worries that after one year he would lose the chance of filing for political asylum. Is it true, after one year, he would not have any hope getting legal status? What should he do?
Dear reader:
The general rule of political asylum is that an applicant must file an application within one year of entering the United States. However, exceptions exist of which one encompasses individuals who are in legal status. Such individuals are still eligible for political asylum filing during the time of legal status or following the ending of such legal stay, but in the latter case must file within a reasonable period of time. What is reasonable depends upon the circumstances of the case and the reasons for which an application is not filed until the time that it is actually submitted. There would most likely not be a problem on this score with an asylum officer where the application is submitted within 90 days of the status ending, but an application filed close to six months or more following the ending of legal status could be problematical. If your cousin has a true reason for filing for political asylum, he should do so either during the time that he is legally in the U.S. or within the 90 day period following his loss of legal status.
Q&A 2.
Why Did the Family Visa Categories Go Backward So Awfully in the January 2011 Immigrant Visa Bulletin?
Zhao reader asks:
January 2011’s immigrant visa bulletin showed tremendous retrogression in family based cases. For example the F-2B category, it fell 25 1/2 months to April 15, 2003. Department of State explained that in the past two years the rapid advances resulted in dramatic increases in the applications and to process these cases caused the retrogression. I do not understand the explanation. I thought the immigrant visa numbers were advanced gradually each month, because once a period of applications is completed, it would move forward onto the next period. How could it be going back for two more years? Does it mean the cases filed in 2003 have not been completely processed? If it is the case, how could it be progressed into 2005 in December 2010? I think even if the applications increase, it could only increase in the recent two years’ cases not the previous years. Please explain.
Dear reader:
The answer lies in one word, "Demand". In family based processing, the I-130 petition is the first step in which the U.S. citizen or permanent resident applies for family members. Following the I-130 approval, the petition is either housed at U.S.C.I.S. for those who are in the States and will be adjusting status to permanent residence, or at the National Visa Center (NVC) until the priority date (filing date) of the I-130 petition is close to becoming available. Ideally all those who apply for I-130 petitions and have had them approved will then go to the next step, either filing I-485 applications to adjust status to permanent residence with U.S.C.I.S. when the priority date date becomes available, or consular processing the petitions overseas with National Visa Center post through first paying the fee bill and then sending in DS-230, parts I and II immigrant visa applications to the NVC in response to NVC correspondence. However, because of the long drawn-out visa process, many applicants become ineligible or disinterested for any number of reasons, or immigrate through other means. The Visa Office of the Department of State sets out visa availability dates according to the demand for immigrant visas given to it from both U.S.C.I.S. and the National Visa Center, and to a lesser extent now, consular posts. The Visa Office in 2010 saw decreased demand for immigrant visas in the family based categories and thus advanced the categories very rapidly. Recently it saw that many applicants with priority dates much earlier than the availability dates it was setting out were being approved by U.S.C.I.S. or sending in DS-230 forms to the NVC. For that reason, it retrogressed the availability dates in January 2011. It does not know whether the recent slew of cases with earlier priority dates is a temporary phenomenon or the indication of a long term trend of people with earlier priority dates only now sending in their final paperwork. Thus the Visa Office cannot predict what its future action will be with regard to advancing or retrogressing the family based categories in the balance of 2011. We would assume that more clarity will come in the next few months.
Q&A 3.
Will Paying $404 Visa Fee for My 23 Year-old Nephew Give Him an Immigrant Visa With My Brother and His Wife?
Sarah reader asks:
Should I pay the visa fee $404.00 for my brother’s son who is 23 years old? If I paid the $404.00 with my brother and his wife’s fee together, will he get the immigration visa?
Dear reader:
If the National Visa Center (NVC) sends you a fee bill for your brother's son, that usually means that it considers him eligible for immigration under the Child Status Protection Act (CSPA). Your letter is not completely clear as to whether the NVC actually sent a fee bill for your nephew. If it did not, your sending in an unsolicited visa fee for him would not mean that he would get an immigrant visa. If you are still uncertain of his eligibility, you or your brother should consult an immigration lawyer familiar with the CSPA counting rules.
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