World Journal Weekly Q & A - February 10, 2013My Petitioner Father Passed Away Between the Time of Immigrant Visa Interview and My Coming to U.S. - Is My Green Card Valid?A son asks: My U.S. citizen father applied I-130 for me and the case was approved in early 2009. I was interviewed and passed the immigrant visa at the Consulate. I decided to go to the U.S. within 6 months. Unexpected, my father passed away before I stepped into the U.S. soil. When I heard my father had passed, within few days, I entered the U.S. and received my green card. When I entered the U.S., I did not tell the immigration officer that my father had passed away. My questions are:
Dear reader, 1. Unfortunately your green card is not valid as your father's petition was automatically revoked when your father passed away. The time of entitlement to permanent residence regardless of the fate of a petitioning parent is the date of entry to the U.S., not the time of obtaining an immigrant visa package at the consulate. 2. If the facts of your father's passing away come to light during a naturalization interview, you would most likely be denied citizenship as you would not have had a valid basis to immigrate. Whether U.S.C.I.S. takes further action in attempting to revoke your green card and/or bring removal proceedings against you is in the agency's discretion. I do note that there are defenses and strategies available if your case comes to that point.Younger Sister's Son is Studying in U.S. and Sister Who is F-4 Beneficiary With 2009 Priority Date Wants to Know If She Can Stay in U.S. with Him Until Graduation or Even Until Priority Date is Current. Asks Also How Son Can Get Green Card Himself?A loyal reader asks: In 2009, I applied immigrant papers for my younger sister and her 13 years old son. At that time, my niece has already attended school in the U.S.. My sister divorced in 2004 and has not yet remarried. My sister already applied a B-2 visa to come to U.S. to visit her son. My questions are:
Dear reader: 1. Normally a B-2 visitor is given six months to stay in the States. U.S.C.I.S. does recognize, however, that a household member of the principal F-1 non-immigrant may be eligible for six month extensions for the duration of the principal alien's non-immigrant status. A household member is a person who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members. There is a possibility that U.S.C.I.S. will continue to grant extensions to your sister until her son's graduation in 2014. 2. I-130 petition beneficiaries like your sister are not allowed to stay in the U.S. based upon the I-130 filing and approval alone. Your sister has a priority date in 2009, and the F-4 category for siblings of U.S. citizens for the month of January 2013 is backlogged to April 1, 2001, for most of the world including China-born. Just counting visa bulletin time instead than real time, it would take approximately eight more years for your sister's priority date to become current. If staying in the U.S., she should maintain legal status. She may wish to discuss her options with an immigration lawyer when she is here. The 3. A traditional path for F-1 students applying permanent residence has been graduation, optional practical training for one year (or more if the major is in science, technology, engineering or math), an organization sponsoring the student for H-1B visa status as a specialized occupation worker, and then an organization sponsoring for labor certification and a green card. Your sister's son may also meet a U.S. girl and they decide to become married. In such case, he might be able to adjust status as the immediate relative of a U.S. citizen. Other options may be open by the time that he graduates from college. There is also the possibility that he may qualify for residence based upon your petition for his mother dependent on when the I-130 petition is approved (if it has not yet been approved) as the period of time that an I-130 petition is pending is credited to the son's age when determining the age of 21 under the Child Status Protection Act (CSPA). What is Next Step for Female Mother of Two Children Entering U.S. Under B-2 Visa in 1993 At Age of 15 and Mother With U.S. Citizenship Applied for Her in November 2006?A single mother asks: I entered the U.S. in 8/1993 under B-2 visa, at that time I was only 15 years old. My mother applied I-130 for me when she was a U.S. permanent resident in 11/2006. My mother was naturalized in 7/2012. My questions are:
Dear reader: 1. Under present law, it does not appear that you are eligible to adjust your status through your mother's petition unless you are the beneficiary of Section 245(i) either as a principal or as a derivative. Under section 245(i), most persons who are not legal in the States like you are able to adjust status to permanent residence if they have the basis for doing so, pay a $1,000 fine, either have a labor certification application or immigrant visa petition filed on their behalf by April 30, 2001, and were present in the States on December 21, 2000. An earlier and still effective version allows the same, but does not require physical presence on a certain date if the immigrant visa petition or labor certification was filed by January 14, 1998. You could possibly qualify as a derivative, for example, if your mother was petitioned for by a brother or sister and you were under the age of 21 when the petition was first submitted. You would be considered a derivative beneficiary if the I-130 petition mentioned your name as child in the applicable information box. Without 245(i) benefits, your mother's becoming a citizen does not allow you to adjust status as you are over the age of 21 and fall under the F-1 category (for unmarried sons and daughters over the age of 21 of U.S. citizens) instead of the immediate relative category (for unmarried children of the the age of 21). Persons in the latter category can adjust to permanent residence even if overstayed as they are considered closer to their U.S. citizen sponsors and so by law enjoy the privilege. In your case, you can only become the immediate relative of a U.S. citizen now if you marry a U.S. citizen or have a child born in the U.S. who becomes 21 years of age and can sponsor you as a parent. 2. Under current law, you can adjust to permanent residence if either of your two children reaches the age of 21 and petitions for you as the parent of a U.S. citizen. If you are placed under immigration removal proceedings, you may apply for cancellation of removal based on 10 years residence, good moral character, and exceptional and extremely unusual hardship to your U.S. born children if you must leave the country. The problem with such an application is the last requirement which is very difficult to show to an immigration court unless there are unusual circumstances concerning your two children. Your other options appear to be waiting for a change of law (for which optimism has risen since the reelection of President Obama), or going through consular processing under which you would be interviewed by the American consulate, denied for an immigrant visa, and instructed to file a waiver of the 10 year bar for being in the U.S. illegally for at least one year. The I-601 waiver application would be submitted to the Phoenix lockbox of U.S.C.I.S., and the burden of proof would be upon you to show that your mother would suffer extreme hardship unless the waiver was granted.
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Copyright © 2003-2013 Alan Lee,
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