World Journal Weekly Q & A - March 27, 2011Can A-10 Card Holder Not Able to Adjust Status be Interviewed Overseas and Return with the Green Card?Amy reader asks: I received A10 card thru political asylum in 2000. My daughter is a U.S. citizen, she should have applied for me but I could not adjust status in the U.S.. Can I go back to China and have my daughter apply for me? Dear reader: Under the A-10 category, you have received an alternate form of political asylum, withholding of removal, which allows you to remain in the United States but cannot convert to permanent residence. When an immigration judge grants withholding, he/she also enters an order of removal at the same time. If you leave the U.S., you will put into effect the order of removal and be barred for 10 years unless you are are able to obtain a waiver of the bar. Since it is never a good idea to effect your own removal, you should perhaps remain in the U.S. without leaving.
Can I Adjust Status to Permanent Residence As the Wife of a U.S. Citizen if I Entered the U.S. Holding C-1 and D-1 Visas?Li reader asks: I came to U.S. in 11/2008 holding C1 and D1 visas. In 6/2009, I applied for political asylum, unfortunately, my interview was denied. I am scheduled to appear in Court in 7/2011. I am now in love with a U.S. citizen and planning to get married. If we are married, can my husband file 1-130 form me or other applications? Can I only get green card thru political asylum because I came in using C1 and D1 visas? Dear reader: C-1 is for an alien in transit and D-1 is for a crewman. C-1 transiters may be adjustable to permanent residence although many questions are likely to be asked, but a D-1 crewman is barred from adjusting status unless he/she has the benefit of Section 245(i). That provision allows most ineligible individuals to adjust status upon payment of a fine amount (presently $1,000) if they can show that they filed either a labor certification application or immigrant visa petition by April 30, 2001, and were physically present in the U.S. on December 21, 2000. Persons can also qualify without the physical presence on December 21, 2000, if their applications were filed by January 14, 1998. In your situation, you held both C-1 and D-1 visas. That is a combination used by aliens transiting the United States in order to become crewmen on ships or planes in the United States. Under that combination, you are not adjustable without Section 245(i). Your husband can file the I-130 petition on your behalf, but if you wish to obtain permanent residence through this method, you would have to leave the U.S., be interviewed for an immigrant visa at a consulate overseas, and then file a waiver application. A waiver is required because U.S. immigration law bars the return of persons who have remained illegally in the United States for 180 days (three year bar) or one year (10 year bar) unless they prove that their return to the home country will cause extreme hardship to their U.S. citizen or permanent resident parent or spouse. Your case is further complicated by your being scheduled to appear in court in July 2011. Leaving the U.S. after having been served with a notice to appear in the immigration court could (without more action on your part) possibly result in a removal order in your absence. You should discuss your options of whether and how far to pursue your political asylum claim and your case based upon your husband with your immigration lawyer to form a workable strategy.Can Our Daughter Still Immigrate With the Old Priority Date from Petition Filed When She Was Unmarried Once I Become a U.S. Citizen Since She Was Forced by China's Family Planning Policy to Register a Marriage After She Became Pregnant?Tang reader asks: My wife and I immigrated U.S. in 3/2005 and received our green cards. Our eldest daughter was aged out then so she left behind in China. In 5/2005, I filed I-130 for her and now received NVC noticed to pay $88.00. Our eldest daughter got pregnant in 2007. China’s family planning policy does not allow given birth without marriage. In order to keep her public job in China and avoid fine, she registered her marriage in 10/2007 and gave birth to a daughter in 11/2007. My questions are:
Dear reader: 1. Unfortunately the May 2005 priority date was automatically lost when your daughter registered her marriage in October 2007. You will have to refile a new I-130 with new priority date when you become a U.S. citizen. 2. Since your wife is already a U.S. citizen, she can file papers for your daughter at this time. She will not be able to use the May 2005 priority date. For the month of April 2011, the F-3 category for married sons and daughters of U.S. citizens is only available to those who filed petitions before March 15, 2001. No one can accurately predict visa availability and forward movement, but it appears that your daughter will have to wait many years to immigrate under the new category. 3. If your daughter finished college and has a specialty occupations, she may be able to enter the U.S. on a H-1B specialized worker status if there is a U.S. employer which requires her specialized services. (Please note that H-1B visas are capped in number, and the application period will begin on April 1st for work to start on October 1st). Another category which does not require that the applicant prove non-immigrant intent is L-1 intracompany transferee if she is working for an overseas company with a U.S. branch or headquarters which wishes to petition for her to work in the U.S.. With H-1B and L-1 holders, companies can further sponsor for permanent residence.
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