World Journal Weekly Q & A - November 24, 2013

Q & A 1. 2. 3. 4.

Q&A 1.

F-1 Student Who Stopped Going to School and is now in Immigration Proceedings Asks Whether He Can Seek Reinstatement to F-1 Student Status.

A F-1 student asks:

I came to the U. S. under F-1 student visa in 2009 and studied until March 2013. Immigration caught me and I am due to appear before the immigration court in late December 2013. Can I go back to school and reinstate my F-1 status and have the immigration court dropped my deportation proceedings?

Dear reader:

Reinstatement of F-1 visas is not within the jurisdiction of immigration judges.  The only power of the immigration court in that situation is to adjourn or continue the case to give DHS an opportunity to look into the merits of a reinstatement application.  If DHS agrees to the reinstatement, it can move the court to terminate immigration proceedings.  In your case, however, it is highly doubtful that a reinstatement could be accomplished since the regulations only allow reinstatement applications to be made within five months of the violation.  By your count, you have been in violation of your status over five months.

Q&A 2.

Reader Has Conditional Green Card Through Marriage, But is Having Trouble with the Marriage, and Wonders How It Will Affect His Getting the Final Green Card.

A husband asks:

My wife and I got along well until recently. She sponsored me for the green card and I have a temporary green card. What will happen if she stops sponsoring me or we decide to get divorced? Will I be able to obtain the final green card? Or will I be deported?

Dear reader:

A conditional resident based upon marriage can remove the conditional basis of the green card if he/she is able to prove that the marriage was bonafide at the inception.  The burden of proof, however, is upon you.  You should take steps now to secure all the evidence of a bonafide relationship as it is possible that your U.S. citizen spouse may decide to harm your immigration status by removing or destroying evidence of the relationship.  Anything and everything which shows that you both shared a common domicile is relevant including leases or deeds, rent receipts, photographs, utility bills, telephone bills, cable bills, credit card bills, car registration, affidavits of others, etc. U.S.C.I.S. will be looking for proof that you both lived at the marital domicile even if only one of your names is on a relevant document, and also for any joint documentation which has both of your names.  If your wife is willing to support the process and file a joint petition with you, such is possible even if you have trouble in your relationship.  If you are legally separated, however, your wife cannot sign on a joint petition.  Without your wife's support, you must obtain a divorce to file an I-751 based upon your assertion that your marriage was bonafide at its inception.  With the divorce, you are not confined to filing within the 90 days prior to the second anniversary of your having been granted conditional residence.  You may file prior to the 90 days. 

Q&A 3.

24 Years Old and Sneaked into the U. S. Long Ago Now Wants to Marry a U. S. Citizen – How to Apply for Green Card?

An illegal alien asks:

I came into the country with my parents over the U. S. – Canada border a long time ago. We are from China. I am now 24 years old and am soon to be married to a U. S. citizen. Can I get the green card then? Can I apply for my Social Security number?

Dear reader:

If you entered the country illegally and are not the beneficiary of section 245(i) under which you or your parents would have had a labor certification application or immigrant visa petition filed on your behalf by April 30, 2001, and were physically present in the States on December 21, 2000, you would not be eligible for a Social Security number based upon marriage to a U.S. citizen unless you are processed in China for an immigrant visa and manage to return to the States.  I note that under President Obama's I-601A provisional waiver program, you would be able to file a provisional waiver of inadmissibility to excuse your being in the U.S. 180 days or one year illegally and becoming subject to the 3 and 10 year bars against return respectively.  The waiver application is to be filed while you are here in the States, and you can know the decision prior to deciding whether to leave the U.S. for consular processing.  As you are 24 years old, you may be eligible for an employment authorization and Social Security number if you fit within the criteria for the Administration's other signature program, Deferred Action for Childhood Arrivals (DACA).  This would apply to you if you initially entered the U.S. before reaching the age of 16; have been present for most of the time from June 15, 2007, to the present-day; were physically present on June 15, 2012; are presently in school, have a high school degree or GED, or served in the military or Coast Guard honorably; have not committed a felony, significant misdemeanor or three other misdemeanors; and are able to demonstrate the need for employment authorization.  If you do not qualify under any of these situations as described above, you may still be able to obtain an individual taxpayer identification number (ITIN) which allows you to pay taxes on your earnings and is helpful in establishing your presence in the States.  Application for an ITIN is made on the IRS form W-7, but note that under IRS rules of June 22, 2012, you must now send in original documentation or original documents certified by the issuing agency of such items as your passport, foreign military identification card, national identification card, foreign voter's registration card, or civil birth certificate.

Q&A 4.

Entered U. S. in 2005, Is Married With 2 Children, 23 Years Old and Finished High School. What Can She Do?

A husband asks:

My wife is 23 years old, the mother of our 2 children, came to the country in 2005, has never left, and graduated from high school. What immigration relief is she eligible for? I do not hold legal status.

Dear reader:

I assume that you are interested in your children's mother applying for Deferred Action for Childhood Arrivals (DACA) and have concluded that she is eligible for the program.  The other requirements are that she be present in the U.S. on June 15, 2012, and either have entered without inspection before that date or that her lawful immigration status expired as of that date.  Application is on Form I-821D Consideration of Deferred Action for Childhood Arrivals, I-765 Application for Employment Authorization, and I-765 WS (worksheet) with a $465 fee made out to "Department of Homeland Security". 

Copyright © 2003-2013 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.