World Journal Weekly Q & A - July 31, 2011What Are the Options for F-1 Student Falling Out of Status?A student asks: I was born in January 1992 and came into the U.S. on a visiting visa with my mother when I was 14 years old in February 2006. My mother was later sponsored by my brother who was a citizen and got her green card in July 2007. She does not know any English at all. I was sponsored by my brother in January 2007 and by my mother in August 2007 when she got her green card. My status expired in August 2006 and was never extended. I have been going to school ever since and am now in my first year of college. What can I do to apply for a working visa at this time? Dear reader: In your situation, I do not see how you are eligible for working status in the U.S. at the present time. To the government, you have been illegal since August 2006. You would not be eligible for a change of non immigrant status to F-1 student because of the illegality. In your case, because you have been in the United States illegally for least one year, you would be barred from returning here for 10 years if you left the country. Looking at your case on a long-term basis, you would be eligible for relief if the DREAM Act was to pass into law as that would allow most persons who entered the U.S. under the age of 16 and have studied here to ultimately obtain residence status. Relief would also be possible if a more general legalization program would be passed into law. As you entered the U.S. with a legal visa, you would be eligible for adjustment of status to permanent residence if you were to later marry a U.S. citizen in a bonafide marriage. There is also a short window of time for you to adjust status if your mother is able to pass a naturalization test and becomes a U.S. citizen. Immediate relatives of U.S. citizens which includes unmarried children under the age of 21 are allowed to adjust status even if they have overstayed their visas. You will become 21 in January 2013. Your mother is eligible to become a citizen in July 2012 and can actually file the N-400 citizenship application 90 days before the five-year mark of her green card in April 2012. If your mother can study very hard, pass the citizenship test and become a U.S. citizen before you turn the age of 21, and if your I-485 adjustment of status application is received by U.S.C.I.S. before the age of 21, you would be allowed to stay and receive an adjudication upon your application. Under the Child Status Protection Act, the critical day is the filing date before the age of 21, not your age on the date of adjudication. Failing the above, your mother's petition for you would be automatically changed when you turn 21 from the F-2A category for unmarried children under the age of 21 of a green card holder to the F-2B category for unmarried sons and daughters over the age of 21 of permanent residents. The F-2B category presently has an eight year wait from the date of filing. If your mother becomes a U.S. citizen after you attain the age of 21 years, the petition would automatically be changed to the F-1 category for unmarried sons and daughters over the age of 21 of U.S. citizens which presently has a backlog of approximately seven years. In the past, persons who were not legal and were otherwise unable to adjust status here in the U.S. could be consular processed at an American consular post when the priority date became current. This has become unpopular with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) since most persons leaving the U.S. are now barred from returning for three years if they remained in the U.S. illegally for 180 days and for ten years if they remained in the U.S. illegally for one year. You may consider it as an option albeit not a good one since the bar can be waived upon a showing of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent if the applicant could not return to the States. Finally if no relief is possible other than leaving the United States and applying for a waiver, a final disfavored mode of relief might be possible before an immigration court under an application for cancellation of removal under which a court can give the person a green card if the person has been in the U.S. for 10 years, has good moral character, and is able to demonstrate exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent, or child. I note that because of the high standard of proof mandated by the law, we would not normally recommend that individuals affirmatively seek cancellation of removal. That is because the application is before an immigration court and not U.S.C.I.S. A loss by the applicant usually results in a final order of removal. The order can be appealed, but appealing based on an attack of the judge's discretion and his/her view of the applicant's failure to meet the standard of hardship normally results in an unfavorable decision on appeal. Sneaked into the U.S. 10 Years Ago, Never Arrested, and Asks About Marriage Green Card and Eligibility for Political Asylum.An undocumented reader asks: I sneaked into the United States ten years ago, during which I did not apply for any identity, nor arrested. What kind of situation would I be in if I am arrested? What should I do then? If I am married to a U.S. citizen and have children, can my wife apply for me and adjust status here? Or do I need to return to China for interview? Can I be paroled? Can I file for political asylum? Dear reader: In the event that you are married to a U.S. citizen, you would generally not be eligible to adjust your status to permanent residence in the country because of your sneaking into the United States. An exception would be if you had entitlement to Section 245(i) benefits. That section allows most illegal individuals to adjust status in the States upon payment of a fine amount of $1,000 if they can prove that they filed an immigrant visa petition or labor certification application by April 30, 2001, and were physically present in the U.S. on December 21, 2000. Another exception could possibly be entry with a false passport of which you have retained the original and which contains marks of inspection by a U.S. immigration inspector. If you had such, you would be considered inspected, but would require a waiver because of the fraud. You have mentioned parole. In your case, the U.S. government would probably not consent to parole you at this stage even if you or your attorney submitted a request. We have heard that some people have tried to file adjustment of status applications and requested advance parole to leave the U.S. and come back in under parole. I believe that this is too risky a maneuver and has too many obstacles for us to encourage anyone to try it. We have also not heard many stories of success. You have also asked about political asylum. Generally speaking, political asylum must be requested within a year of the applicant's entering the United States. Otherwise, the applicant can only be granted withholding of removal if the application is successful, which does not lead to permanent residence. The one year bar can be overcome if an applicant is able to demonstrate exceptional circumstances, which may also include personal changes of circumstances. Reader's Family Told Truth that Brother Sponsored by Mother Married Before Mother Naturalized and Wants to Know if Case can be Saved.Huang reader asks: My mom came here in 2004, she use her green card applied for my brother as unmarried single over 21 year old child. My brother got marry in 2006, and we didn't update the situation to the NVC. Last year, my mom passed the naturalization interview and became U.S. citizen. At the same time, we got the letter from NVC, visa available for brother to come. I called the NVC, told them the truth, they asked me to mailed my brother’s marriage certificate and his child’s birth certificate to NVC. So I did as they said, mailed in all the documents to updated my brother case. Last week, we got another letter from NVC, they said they returned the case back to USCIS because the green card holder could not apply for the married child to come to USA. I like to know we need to completely start over again, or we can go to USCIS office and just update the information and switch from F2B to F3? Dear reader: Unfortunately you will need to start all over again as your brother's becoming married prior to your mother's becoming a U.S. citizen automatically invalidated his case. If your brother had married after your mother's naturalization, the case could have continued on the theory that the mother's naturalization changed the case classification from F-2B adult single son of a permanent resident to F-1 single adult son of a U.S. citizen. From that point on, the F-1 could change to F-3 married son or daughter of a U.S. citizen. However, there is no stepping stone from F-2B adult single son of a permanent resident to another category for married son of a permanent resident. Therefore the case failed when your brother no longer qualified as a single son of your mother.
|
Copyright © 2003-2012 Alan Lee,
Esq. |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
|