World Journal Weekly Q & A - May 15, 2011EB-5 Investor on a Visitor's Visa Wants to Know How to Stay Legally While Petition is Being Adjudicated.An investor asks: I and my family wish to immigrate under the EB-5 investor category. To do that, I have been in and out of the United States for the past year setting up my investment and the I-526 application was given to U.S.C.I.S. three months ago. But my lawyer tells me that we must wait for the I-526 petition to be approved before we can file adjustment of status applications to regularize our status. What can we do in the meantime to maintain our legal status? We are from China and have visitors' visas which will expire soon. Dear reader: Your lawyer is correct in that there is no concurrent processing of I-526 Immigrant Petition by Alien Entrepreneur and I-485 Application to Register Permanent Residence or Adjust Status. The first must be approved before you are allowed to file the second. There is also no premium processing under which you can pay U.S.C.I.S. an additional fee to expedite processing of the I-526. The immigration laws also did not provide a non- immigrant category for individuals who are awaiting adjudication of immigrant petitions. Unless you have the benefit of Section 245(i) under which most individuals who are illegal are allowed to adjust status upon payment of a fine amount of $1,000 if they submitted an immigrant visa petition or labor certification application by April 30, 2001 and were physically present in the U.S. on December 21, 2000, you and your family members would have to maintain legal status in order to submit I-485 applications. Some investors in the past have been successful with requests for extension of visitor status or the husband or wife becoming an F-1 student in the States. I do note that if you are doing an individual investment case rather than one through a regional investment center and if you have an affiliated business abroad, you might also qualify for an L-1 intracompany transferee non-immigrant visa status. What Are the Best Options for a U.S. Citizen to Bring His Girlfriend to the States?Sato reader asks: I am US citizen and my girl friend is Japanese. We are thinking to get married and she will move to US. I am not sure which visa should I apply for her... below are the options I researched on the web: Dear reader: 1. Of the three options that you suggest, applying for a K-1 visa and getting married in the U.S. is probably the quickest method. The K-3 visa was of more utility when I-130 petitions were taking a long time to adjudicate by U.S.C.I.S. Now the adjudication time is fairly short and the K-3 has become much less used. Having your girlfriend come to the U.S. with a tourist visa and getting married can raise problems if U.S.C.I.S. believes that your girlfriend came to the U.S. with that purpose. Such would constitute fraud or misrepresentation and possibly lead to her being barred from the States. You can think more seriously about the K-1 visa or getting married and applying directly for an immigrant visa for her through form I-130. 2. K-1 processing would probably take approximately six-nine months and the immigrant visa a year. 3. A K-1 petition on Form I-129F has a filing fee of $340 and the I-130 petition $420. If you are also asking about attorneys' fees, they would vary from lawyer to lawyer. We do not quote fees publicly, but they are reasonable. EB-5 Investment May Allow Son to Immigrate Even Though Only Four Months to Age 21 and Normally Would Age-out.A couple asks: Our son is in his third year of college in the U.S. (will be 21 in four months) and we are thinking of immigrating to the U.S. under the investor program. However, we do not want to immigrate if our son cannot be part of the application, and we understand that the age for children to immigrate with their parents is 21. We also asked around and found out that the process of immigrating through investment would take approximately one year. Is there a chance that our son can immigrate with us? Dear reader: Under the Child Status Protection Act (CSPA), your child should be able to immigrate with you so long as you have filed the I-526 Immigrant Petition by Alien Entrepreneur before he reaches the age of 21. That is because your son is given credit to his age for the period that the I-526 petition is pending with U.S.C.I.S. and there is generally open visa availability for applications in the EB-5 investor visa category. In such case, a child's age is frozen on the date of petition filing. Under the CSPA, it would not be the dates of I-526 approval and the filing of Form I-485 Application to Register Permanent Residence or Adjust Status which are important, but the date of I-526 filing assuming that it is filed when the category has open visa availability and the petition is later approved. I note that application of the CSPA in this situation is important not only to you but to many other potential investors who will only choose to immigrate if they can include their family members. Widow of U.S. Citizen Relying on His Retirement Pay Wants to Know What Will Happen if She Remarries and Sponsors a Chinese National.Wang reader asks: I came to U.S. in 2000 under B2 visa. In 6/2002, I married my U.S. citizen husband. My husband passed away in 2/07 due to illness. I have been relying on his retirement pay ever since. I am 68 years old with a green card and is planning to file for naturalization soon. Can I remarry? Will it affect my ability to claim my decease husband’s retirement pay? If I marry a Chinese in mainland, can I apply him to immigrant to the U.S.? How long will it take? Once he is here, can he apply for SSI? What should I do now to process? Dear reader: 1. We have not professed to have expertise in Social Security or pension law. So we looked for an answer by someone else. The Internet article, "Remarriage Government Rules and Regulations" (www.lifemanagement.com/FSA11.1.920/) says that if you receive survivor's benefits from a private pension, you may lose it if you remarry because there is no requirement that private pension plans offer that protection and they rarely do. On the other hand, survivor's benefits from Social Security would probably be protected as seen in the Social Security article, "Social Security Online: Widows, Widowers and Other Survivors: Qualify and Apply" (www.ssa.gov/survivorplan/ww&os2.htm) which says that if you remarry after age 60 (50 if disabled), you could still collect benefits on your former spouse's record. We suggest, however, that you check with your ex-husband’s pension plan administrator and the Social Security Administrator yourself to obtain definitive answers. 2. If you marry a Chinese in the mainland, you can apply for him to immigrate to the United States. Normally a U.S. citizen sponsored case will take approximately one year and by green card holder four-five years. The consulate in Guangzhou will interview your new husband to determine whether your marriage is bonafide. 3. Under the Welfare Reform Act of 1996, persons are not allowed to claim SSI for five years after immigrating to the U.S. Even after that, your income and that of any co-sponsor who promised financial support through form I-864 Affidavit of Support could be charged back with the amount that he takes in SSI benefits. Financial sponsors in family based cases remain contracted to support the immigrant until that person becomes a U.S. citizen, has 40 quarters of earnings (10 years), leaves the U.S. permanently, or passes away. In a marriage case, even divorce does not relieve you of the support obligation if your ex-husband takes SSI. 4. To process the marriage case, you would of course marry the alien, and then file Form I-130 Petition for Alien Relative with the Chicago Lockbox of U.S.C.I.S.'s National Benefits Center with filing fee, proof of marriage, proof of termination of prior unions on both sides, G-325A biographic data sheets, and passport size photos (two apiece) of you and your husband.
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Copyright © 2003-2012 Alan Lee,
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