World Journal Weekly Q & A - January 29, 2012

Q & A 1. 2. 3.


Q&A 1.

What to Put Down on N-400 Naturalization Form When Spouse is Illegal?

A reader asks:

I have green card for 5 years and am preparing to file for naturalization this year.  However, my husband did not have status and has never been in court.  On the N-400 form, it is required for me to write a statement to explain my husband’s current status.  How should I write without jeopardizing my naturalization application?  And will it affect my husband at this time because he has no status?

Dear reader:

The most jeopardy to you is probably not telling the truth on the application concerning your husband's current status.  Untruthfulness in the naturalization process can bring on a finding of bad moral character which would bar you from naturalizing for the next five years.  A naturalization examiner is usually not very interested in having your husband arrested as it would just cause more work for the agency when it is probably apparent that you will sponsor him anyway once you obtain your naturalization.  In the past, we have been fairly successful in just marking down on Form N-400, Part 8, Section E, subsection 3, "None".



Q&A 2.

Can My Mother Make a Successful B-2 Visitors Visa Application; and If So, How Long Can She Stay?

A new immigrant asks:

I have just arrived in the U.S. for one year, holding a green card.  My mother is a resident of Macao, 62 years old, who has been retired for 2 years.  Is it easy for her to file a B2 visa application?  She has about 10,000 Hong Kong saving deposit and a house in Macao.  The house is under the names of my family of 4 and mother’s name is included.  Does she need other evidence?   I do not have a job and have not yet filed any taxes and our income is not high.  Will this affect her application?  What should we do before the application?  If her case is granted, how long can she stay and is it possible to extend?

Dear reader:

B-2 visiting visas are given in the discretion of the American consular officers who interview the applicants.  They generally like to see whether it is likely that the applicant will return to the home country after a short period of visit.  Evidence of ties and bonds to the home country in the form of property owned and relatives still in the home country are proofs the consular officers generally wish to see along with some proof that the applicant will have the means to support himself/herself during the visit without having to be employed.  In your case, not having a job or filing taxes is a negative factor.  The Hong Kong savings account and partial ownership of the house in Macau will be factors that a consular officer will look at, but at the end, he/she will make a decision dependent upon his or her impression of your mother as a bonafide visitor from the interview.  Perhaps a longer period of your residence along with a stable job and payment of taxes would boost the chances of her successful application.  If she is granted the B-2 visa, immigration inspectors usually give six months entry at the airport, and it is possible that she may be able to extend the period with an extension application (Form I-539) when her time is close to expiring.

Q&A 3.

Can Person Granted Withholding of Removal Obtain Social Security Benefits for Time Before the Withholding Grant; and Can He be Sponsored for Green Card by USC Son?

Wang reader asks:

My friend applied for political asylum many years ago.  In December 2010, his green card application was denied but his case for withholding of removal was granted.  His questions are:

  1. He already filed income taxes over 10 years and worked and be credited for 40 quarters of coverage.  He will turn 65 years old next year, is he qualified for social security retirement fund then?
  2. His son immigrated to the U.S. 10 years ago thru his mother’s (U.S. citizen) application. He and his ex-wife divorced in 1987.  Can his son apply for him for green card when his son becomes a U.S. citizen?

Dear reader:

1.   While this question is outside the field of immigration, and we do not profess to have any expertise in social security questions, the Social Security Online FAQ's appear to state that proof of lawful presence must be provided for the month that is claimed.  A person granted withholding status is considered by Social Security to be a non-citizen who is lawfully present.  The question appears to be whether your friend can be credited for the years that he worked before he was granted withholding status.  While the above would seem to indicate that he could not be credited, we did speak with a representative from the Social Security hotline who said that it did not matter when the person was granted withholding status as long as he accrued the 40 credits by filing income taxes over 10 years.  At this point, it would appear that we do not have a definite answer. 

2.   Your friend's son must not only be a U.S. citizen, but also be at least 21 years of age.  If your friend came to the U.S. legally through a non-immigrant visa or parole or has the benefit of Section 245(i) which allows most persons who are not legal to adjust status so long as they filed a labor certification or immigrant visa petition by April 30, 2001, and were physically present in the U.S. on December 21, 2000, it may be possible for him to obtain permanent residence through his son's sponsorship.  As your friend is still under the jurisdiction of the immigration court through his withholding of removal, that case would have to be reopened in order for your friend to obtain his ultimate relief.  He should certainly consult with an experienced immigration lawyer as his case will have a number of variables. 

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.