World Journal Weekly Q & A - December 8, 2013

Q & A 1. 2. 3.

Q&A 1.

Daughter’s Green Card is not yet Expired Although She Hasn’t Been Back to U. S. Since 2006 – Can She Reenter the Country Now With the Green Card?

Linda asks:

My daughter immigrated to U.S. and got a green card in 2006.  She only stayed for three months after came in and returned back to Taiwan.  She has never returned.  In 2008, she changed her name and got married in Taiwan.  She is now 34 years old.

Her green card is not expired.  However, she believes her green card is invalid due to her absence in the U.S. for so many years.  I want to apply for her again. I have the following questions:

1. Is her current green card valid? Can she return with that green card?

2. If she needs to visit Hawaii, Guam or New York, should she be using her green card or apply a tourist visa in Taiwan?

3. If she tries to enter the U.S. using the green card, will she be sent back? Will that leave a bad record on her immigration file if she is sent back?

4. If she comes in with a tourist visa, will the custom find out she holds a green card status and deny her entry? Or will she be denied for a tourist visa because she has a green card?

5. If she applies a new green card, will she need to give up her current green card first?  

Dear reader:

1. Your daughter’s green card although facially valid is not legally valid. Persons with green cards are only allowed to stay out of the country for less than one year and keep their green cards valid. She should not attempt to return with the green card.

2. She should apply for a tourist visa in Taiwan.

3. In attempting to enter the U. S., she may certainly encounter problems with Customs and Border Protection inspectors at the port of entry if she tries to use the green card. She would likely be given a choice of either surrendering the card and leaving the country or having the card confiscated and being given a date to appear before an immigration judge to decide her right to stay. If she is sent back, she may have a more difficult time in attempting to apply for a visiting visa at a later date.

4. If your daughter obtains a tourist visa, she would likely be allowed entry into the U. S. as long as she explains her situation with the green card, that it has expired, and that she intends to return to Taiwan at the end of her period of visit. I suggest that she surrender the card at the time that she applies for the tourist visa in Taiwan.

5. If your daughter applies for new green card, she will have to go through the entire process again. At the end, she should surrender the green card in order to obtain a new one.

Q&A 2.

Friend Wonders If Undisclosed Arrest in Taiwan for an Illegal Entry and Stay Will Give Problems to Her in the Future Under U. S. Immigration Law.

A friend asks:

I have a friend who immigrated to the United States 5 years ago, and I’m pretty sure that she did not say anything at the visa interview about the fact that she had been arrested in Taiwan because she illegally entered and stayed in the country. Will this cause her problem with U. S. immigration at any time in the future? How serious would that crime be considered in the U. S.?

Dear reader:

The first issue is whether your friend disclosed the truth in her immigration papers to the U.S., and if not, whether the non-disclosures were material to her application.  In other words, would the American consular officer have issued her an immigrant visa had he/she been in possession of all the facts? Generally speaking, an adjudicator will consider whether the evidence in the record supports a finding that your friend was inadmissible on the true facts or whether the misrepresentation intended to shut off a line of inquiry which was relevant to your friend's eligibility and, if the relevant line of inquiry was cut off, whether the inquiry might have resulted in a proper determination of inadmissibility.  As most crimes which are relevant concerning illegal entry are those pertaining to breaching the borders of the United States and not those of a foreign country, there is a good chance that your friend's stay in jail in Taiwan for being an illegal alien would not be considered material to her U.S. permanent residence application. In the event that it is somehow considered relevant, any foreign conviction is matched against U.S. criminal law provisions to see whether the act is a crime in the States and how seriously such a crime would be treated here.  That being said, entry without inspection is generally not considered a serious crime here, and being in the country illegally only has civil and not criminal penalties.

Q&A 3.

Reader Moved to California for Study and Asks Whether She Should File for Naturalization in California or Utah, Where She is From.

A student asks:

I just moved to California from Utah to study at my first choice university. My family is in Utah and that is my home residence where I have my drivers license and other ID. I can apply for U. S. citizenship now, and so do I file in California or in Utah?

Dear reader:

Initially, N-400 naturalization applications are not submitted to a local immigration office.  Residents of California or Utah must file to U.S.C.I.S.'s lockbox in Phoenix, Ariz. at:

Post office address:
USCIS
P.O.Box 21251
Phoenix, AZ.  85036

Express mail or courier deliveries:
USCIS
Attn:  N-400
1820 E. Skyharbor Circle S,
Suite 100
Phoenix, AZ.  85034

The question is which immigration office will have jurisdiction over the remainder of your naturalization process, including interview and swearing-in. U.S.C.I.S.'s regulation allows a student who is attending school in another state to apply for naturalization where the institution is located or in the applicant's home residence "if the applicant can establish that he/she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process."  U.S.C.I.S. also provides that if an applicant claims residence in more one state, the residence for purposes of naturalization is determined by reference to the location from which the annual federal income-tax returns have been and are being filed.  If your tax returns are being filed in California, you would likely be considered a resident for naturalization purposes in that state. If not, you would have the choice to list your address as still being in Utah and completing your naturalization process over there.

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.