World Journal Weekly Q & A - August 5, 2012

Q & A 1. 2. 3.


Q&A 1.

Reader who Transited Without Visa and Was Paroled Asks if He can Adjust Status to Permanent Residence as He is Married to U.S. Citizen in Bonafide Marriage

A transit passenger asks:

I came to America in 1990 because I was going from South America to China and transiting in the U.S. I did not have a visa, but the travel agent told us that one was not needed as there was a special category for persons transiting without visas.  At the airport in the U.S., Immigration looked through my luggage and discovered things that made them believe that I intended to live in the U.S., although I protested that I would not do that.  After being kept at the airport for five hours, I was let go under a parole status.  I am now married to a woman who became a U.S. citizen last year.  We already have two children.  Can I adjust my status to permanent residence through my wife sponsoring me? Looking at my parole card and the “A” number which is on it, it does not appear that any papers were sent to me to go to immigration court. 

Dear reader:

Under the decisions that we have read, an individual who entered the U.S. transiting without a visa (TRWOV) cannot adjust to permanent residence even if paroled and sponsored by a U.S. citizen spouse.  There is a possibility that you may be able to adjust status as the rule against transits without visas who have been paroled is not well known.  It may turn out that an immigration examiner will look more at the fact of you having been paroled which normally allows an individual to adjust status if the applicant is the spouse, parent, or child of a U.S. citizen.  But generally speaking, an individual who attempts entry into the States under TRWOV status is only allowed to adjust if he/she has the benefits of section 245(i), under which latest version, persons are benefited who filed labor certification or immigrant visa petitions by April 30, 2001, and are able to show physical presence in the country on December 21, 2000. 



Q&A 2.

Things Still Watch Out for in Changing to J-1 Exchange Visitor Status

A sister asks:

My brother-in-law works as a research assistant at a University and his H-1 will be expired in 8/2012.  His original plan was to go back to home country but in the end of March my sister found out she was pregnant and wanted to stay and gave birth here in the U.S.

My brother-in-law’s boss is to retire soon and found a research job for my brother-in-law at another University but must transfer his status from H-1 to J-1.

Can he transfer back from J-1 to H-1 if my brother-in-law finds another job after transferred to J-1?  Will he encounter any problem?  Is there other way they can stay in the U.S. a little longer?

Dear reader:

I will assume from the question that the brother-in-law has additional time for H-1B eligibility, and that the J-1 idea is only to accommodate the college's wishes.  If the brother-in-law is from a country which does not have an all encompassing skills list or a skills list with the brother-in-law's specialty on it, or the funding is not from the home country or international organization or U.S. government, the J-1 would not be subject to the two year foreign residence requirement.  Please note that if the brother-in-law is from China, he would automatically incur a two year foreign residence requirement since China has an all encompassing skills list.  Being subject to the home country requirement means that the brother-in-law would not be eligible for another H-1B visa or immigrant visa until the two year home residence requirement is either waived or met.  If he is not subject, he could change status from J-1 to H-1B if he finds another position.  If he becomes subject and wishes to stay in the U.S. for a longer period of time, he can attempt to waive the 2 year requirement or attempt to change non-immigrant status to a visa category other than H-1B or L-1 (intracompany transferee worker) dependent upon the amount of time that he intends to stay in the country. 

Q&A 3.

Reader a Candidate for Obama Administration I-601A Waiver and Overseas Interview

An illegal alien asks:

I sneaked into the country from China about six years ago, have had no contact with Immigration, married my U.S. citizen husband, and we have a child of three yearsWe know that I cannot adjust my status to permanent residence because I sneaked in, and we're thinking of having another child so that I can apply for political asylum because of China's one child policy.  Is this a good strategy? Do we have other options?

Dear reader:

Currently most cases based on the birth of an extra child in the U.S. are being denied.  Possibly a better strategy would be to apply under the Obama administration's plan to file a provisional waiver in the States of the 3 or10 year bar, and upon approval, interview for permanent residence at the American consulate overseas.  Under the procedure which is slated to come into effect before the end of the year, immediate relatives of U.S. citizens (spouses, parents, and children under the age of 21 and unmarried) who are not able to adjust status in the States and are eligible for permanent residence except for their manner of entry into the country will be able to have their U.S. citizen relative file the I-130 relative petition on their behalf, and upon approval and beginning the consular processing by obtaining a fee bill from the National Visa Center, be able to submit an I-601A provisional waiver of the 3 or 10 year bar for being illegal in the U.S. for 180 days or one year respectively.  Assuming that the waiver application (which is based upon extreme hardship to a U.S. citizen spouse or parent) is approved, the applicants would continue their consular processing and interview overseas with the assurance that they would not be denied for being illegal in the States.  This is in contrast to present procedure under which a person subject to the 3/10 year bar would have to first be denied by the American consulate at an overseas interview before being allowed to submit a waiver application and during the time of waiver adjudication or waiver denial be barred from returning to the U.S.. 

 

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.