World Journal Weekly Q & A - July 31, 2011What Are the Options for F-1 Student Falling Out of Status?A Student asks: I came to the U.S. in 2008 from China as an F-1 student, but my I-20 expired in January 2011 because I forgot to extend it and the school never reminded me. Now the school says they cannot help me to renew the I-20 and that I should go out of the country and come back can with a new I-20 to make myself legal again. What can I do in this situation? Dear reader: It appears at this time that you have two choices - either to take the school's advice and leave the country and re-enter, or file a request for reinstatement of F-1 status with U.S.C.I.S. As you came to the U.S. with a valid visa, you are eligible for an automatic re-validation of your F-1 visa even if it is expired. As long as you will only be traveling to the Caribbean, Mexico or Canada, you would be allowed reentry to the U.S. with an expired visa and the valid I-20. If you choose reinstatement, you would file Form I-539 with U.S.C.I.S. with a properly completed I-20 indicating the designated school official's recommendation for reinstatement and attest that you are currently pursuing or intending to pursue a full course of study at the school; that you have not engaged in unauthorized employment; that you do not have a record of repeated or willful violations of immigration regulations and that you are not deportable on any ground other than your failure to maintain status; and you must show that your violation resulted from circumstances beyond your control and did not include a willful failure on your part which resulted in the need for reinstatement. If you choose the latter route, a letter from the school that it forgot to remind you to renew the I-20 form would be helpful. Can Reader with Final Exclusion Order Apply for 10 Year Green Card or Reopen His Case or Gain Dependent Asylum Status Through Wife?A husband asks: I was ordered excluded by the immigration judge in 1998, my appeal dismissed by the Board of Immigration Appeals in 1999, and my motion to reopen denied in 2003. Now I have been in this country for 12 years, married my wife here in 2005, my wife was given withholding of removal in 2007, and we have two U.S. citizen children. My wife won the withholding of removal under the one child policy of China since we have two children and my wife suffered an abortion in China. She put in her application for asylum when she was pregnant with our second child in 2006. What can I do now? Am I eligible for the 10 year green card? Can I reopen my case? Why did the judge give my wife withholding of removal instead of political asylum? Can something be done to give my wife political asylum so the she can file an asylum family petition for me? Dear reader: You are not eligible for a 10 year green card (formally known as cancellation of removal) because, although you have been here 12 years, the time for counting years stopped when you were issued papers to go to the immigration court in 1998. The only way that you would be eligible for consideration of the 10 year green card would be if U.S. Immigration and Customs Enforcement (ICE) agreed to allow your case to be reopened on some other basis and transferred to removal proceedings instead of exclusion proceedings. Through issuance of a Notice to Appeal (NTA), then the date of the NTA would be your new date for date stopping your clock. The chances of that happening are not very good at all. To reopen your case on your own political asylum claim (which I assume would incorporate a family planning policy claim), you would need the agreement of ICE since your motion to reopen would not be considered timely. A motion is only timely if it is made within 90 days of the prior order or if you can prove changed country conditions in China. The chances of ICE agreeing to allow you to reopen and present a coercive family planning policy claim are not good since Court and Board of Immigration Appeals decisions since 2007 have largely denied claims based on having two U.S.-born children. On the question of why your wife was given withholding of removal instead of political asylum, the latter which would make you eligible for follow to join benefits, the usual reason is lateness in filing the political asylum application as the law with exceptions demands filing the I-589 asylum application within a year of coming to the U.S. (A grant of political asylum requires that the applicant show that he/she has been persecuted in the past or has a well-founded fear of persecution on account of race, religion, political opinion, nationality, or membership in a social group. Withholding of removal requires the applicant to prove a probability of persecution on account of those grounds. A grant of asylum allows a later application for permanent residence and status for dependent family members while a grant of withholding does not). One of the exceptions to the one year bar could be filing within a short period of time either before or after a change of personal circumstances. Please note that in deciding to grant exceptions, the courts look at changed relevant personal circumstances instead of changes in country conditions. If the immigration judge granted your wife withholding on the basis of having two children in the States, then it would seem as if the birth of the second child was a relevant change of circumstances which could possibly allow for a grant of political asylum if there were no other adverse factors. On the other hand, if the immigration judge granted on the basis that your wife had suffered an involuntary abortion in China, then it would appear as if your wife was indeed late in filing for political asylum since that event happened years ago when she was still in China. If you are interested in pursuing the question of whether your wife should have had an asylum instead of withholding grant, your wife should possibly have a discussion with her attorney to ask why she was given withholding instead of asylum. If her attorney confirms that the grant was given for the two children and not for the involuntary abortion, your wife might move to reopen her case. However, there is still a danger you should consider. That is, with a reopened case, the ICE attorney may decide to open her case entirely and contest her right not only to asylum but to the withholding grant. Given your situation, and the possible danger, you and your wife will have to think seriously about any steps that you may wish to take at this time.Can My Sisters in Taiwan and Japan that I Sponsored for Immigration Come to the U.S. During the Waiting Time?Chang reader asks: I applied I-130 for my 2 sisters who is in Taiwan and Japan, and they were approved, they are waiting for visa. We want to know if it is OK for them to visit USA during the waiting time. Also how long they have to wait to get the visa? One of my sisters applied in July 2003, approved in June 2009, and the other applied in July 2005 and approved in July 2009. Dear reader: It is difficult to state how long your two sisters will have to wait to immigrate to the United States. The waiting times for the family based categories have not been constant. The F-4 category for brothers and sisters of U.S. citizens had visa availability in January 2011 for people who filed petitions before January 1, 2002. Unfortunately the category has retrogressed and in May 2011 is only available to those who filed prior to3/8/2000. Any estimate at this time would be a guess at best. To your other question of whether it is OK for them to visit the United States during the waiting period, U.S. consulates have it within their discretion to issue visitor's visas for applicants in your sisters' situation. If American consular officers are convinced that they will return from their visit, they will usually issue the visas. I note that, for your sister in Japan, she may have a different route if she is a Japanese citizen. Japanese do not need a visa to visit the United States as they qualify for travel with their passports under the visa waiver program. If so, your sister in Japan would make an online application for entry through the electronic system for travel authorization (ESTA) which is controlled by U.S. Customs and Border Protection. Once approved, the system will display confirmation of the application approval. Although possessing visa or travel authorization is no guarantee of admission to the U.S. (as a Customs and Border Protection officer at the port of entry will make the final determination), your sisters should have no problems passing inspection so long as they do not attempt to come frequently and stay for extended periods of time in the country.
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Copyright © 2003-2012 Alan Lee,
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