World Journal Weekly Q & A - December 23, 2012

Q & A 1. 2.


Q&A 1.

What to do for Brother of U.S. Citizen with Approved I-130 Sibling Petition and Two USC Children who Stayed in U.S. Over 10 Years Illegally, had Order of Deportation, and Returned Voluntarily to China in 2009? What to do About His Wife Who is Illegal in States and Also has Order of Deportation.

Mrs. Wu asks:

I am a U.S. citizen.  I put in immigration petition for my brother and sister-in-law in February 2002.  My brother had come to U.S in 1998 without visa and he has no criminal record.  My brother and sister-in-law have two daughters. (One is 11 years old, the other 8 years old, both are U.S. citizens).  They both applied for asylum but denied with deportation orders.  In September 2009, my brother voluntarily returned to China. According to the state department visa bulletin, F4 is soon current.  I have three questions:

  1. Brother stayed illegally in the U.S and returned to China voluntarily and currently in China. Can we submit waiver application in advance? What kind of documents do we need for waiver?
  2. Base on my brother’s situation, what other obstacles will he encounter according to the U.S Immigration law? What other things we should pay attention to?
  3. When I apply for my brother, I also apply for my sister-in-law.  My sister-in-law is in the U.S with her two daughters.  She has been overstaying for years.  When the priority date becomes current, can she apply for waiver in the U.S and return back to China for consulate interview?  What should she do?

Dear reader:

1.  As your brother entered the U.S. without a visa, stayed for over 10 years, and has an order of deportation, he is barred from returning for 10 years (time counted from the date of his return to China in 2009) by both the illegal stay for one year and a deportation order.  Both of these bars are 10 years and run concurrently.  A waiver of the deportation order bar can be applied for on Form I-212 Application for Permission to Reapply for Admission into the United States after Deportation or Removal with the DHS field office director having jurisdiction over the place of the deportation proceedings.  Permission to reapply is a discretionary remedy which is granted if favorable factors outweigh adverse factors in a given set of circumstances.  DHS would like to see documentary evidence such as affidavits from you, your brother and other individuals in support of the application; evidence of family ties in the U.S.; police reports from countries in which your brother resided; complete court records regarding convictions or charges from any country; if applicable, evidence of rehabilitation; any evidence that your brother would like to submit to establish that his admission to the U.S. would not be against our national welfare or security; medical reports showing your brother's medical problems or medical problems of the children or other family members in the U.S.; employment reports of your brother; evidence of hardship to your brother, relatives and others that would result from denial of the application; the impact of family separation; country conditions of China to which your brother's family would have to relocate if the application was denied; or any other evidence that your brother might wish to submit to show why he should be granted permission to reapply.  Your brother will also have to submit an I-601 Application for Waivers of Grounds of Inadmissibility based upon the illegal stay for over one year in the U.S. which cannot be submitted before the interview.  He must go through the interview process, be denied the immigrant visa, and then submit the I-601 application to U.S.C.I.S. at its lockbox in Phoenix, Ariz. In the application, he will have to demonstrate that his inability to return to the States will cause extreme hardship to a U.S. citizen or permanent resident parent.  (Please note that the waiver is only available where extreme hardship will be suffered by a U.S. citizen or permanent resident parent or spouse - the waiver cannot be based upon hardship to your brother's children).  Documentation for an I-601 waiver would mirror many of the documents required to prove the above points in an I-212 application, but the evidence should fully explain the extreme hardship to the qualifying family member. 

2.  Assuming that your brother is able to obtain the two waivers, he would likely be able to return to the States with an immigrant visa.  The necessary waivers are the two main aspects to which he should pay attention. 

3.  As your sister-in-law has a final order of deportation and is also not qualifying for immigration as the immediate relative of a U.S. citizen, she would not be eligible for the soon-to- be finalized I-601A provisional waiver under which persons who entered the U.S. without inspection will be able to submit waiver applications for illegal stay while in the U.S. and wait to see the result prior to deciding whether to go overseas for a consular interview.  Your sister-in-law would have to go through the same process as your brother if she goes back to China when the priority date becomes current. If she does not have a qualifying relative for the I-601 waiver, she may choose to wait until your brother returns with an immigrant visa before she starts her consular processing.  If she does not wish to do so and wishes to explore any other options, she should make an appointment with a reputable and experienced immigration attorney. 



Q&A 2.

Mother's Green Card Expired While Overseas - What Can She Do Now?

A son asks:

My mother lives in Hong Kong.  She had a green card and had been using it visiting relatives in the U.S.  Earlier this year, she found out her green card had already expired.  My questions are:

  1. How to reapply her green card?
  2. Should she apply in Hong Kong’s U. S. consul or should I apply for her in the U.S.?
  3. What other documents does she need, other than her old green card?
  4. Is the procedure complicated?  Can we do it ourselves or we should hire an attorney?

Dear reader:

1.   If she has left the country for at least one year and there was an emergency situation which kept her from returning to the U.S. on time, she can contact with the U.S. consulate in Hong Kong to apply for a special immigrant visa.  If her time outside the U.S. has been less than one year, she can contact with the U.S. consulate in Hong Kong to request a travel document to come back to the U.S. or to file an 1-90 application for a replacement green card.

2.   If you are a U.S. citizen and if your mother will not be able to use either of the above methods to reclaim the green card, you can apply for another green card for her through form 1-130 petition for alien relative. At the time of her interview, she would have to recommit to living primarily in the U.S. as her address of residence.

3.   For the situation of the special immigrant visa, she would likely have to produce the passport, expired green card, and documentation of the emergency reason for which he was not able to return on time. With the second situation, the passport and green card. For the third situation, you would need proof of your U.S. citizenship and your birth record showing that she is your mother to file the 1-130 petition.

4.   It is possible that your mother and you may be able to go through the procedures by yourselves. Some may consider the procedures complicated, others not. Whether you hire an attorney is entirely up to you and your mother.

 

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.