Published on Lawyers.com and the Epoch Times on December 19, 2014

Q & A 1. 2. 3. 4.

Q&A 1.

Can I Get a Green Card for My Wife Without Going Back to the States Ahead of Her to Set Up Domicile?

I have lived in China for almost 9 years, married to a Chinese national for 7 years. We have 2 children (both are U.S. citizens with U.S. passports and soc. sec. cards). We recently sold our business here and would now like to get my wife a green card so we can move back to the States. The 2 major problems as I see them are: Everything here is in her name, the business, bank accounts, apartment we rent, car, etc. I have not worked since I've been here as technically, all income is hers. Therefore I have not paid taxes since 2007. Also, since I have been here for so long, I have no domicile in America. I would hate to leave my wife here by herself to take care of both kids while I go back to the States to find work and a place to live. Is it possible to get the CR-1 (IR-1) visa without having to do this? We have a fair amount of money saved up from her business, but again only in her name.

Mr. Lee answers:

The difficulties in your case are that you will have to provide an I-864 affidavit of support for your wife and you will have to prove U. S. domicile in order to immigrate her. For the first part, you would likely have to have a joint sponsor who would be willing to put up another I-864 affidavit of support. On the matter of domicile, you would have to prove to the satisfaction of the consular officer that you have a domicile in the country. Factors that consular officers will look at are whether you have a job offer or job in the U. S., whether you are registered to vote, whether you hold any real estate in the U. S., whether you have opened U. S. bank accounts, transferred funds to the U. S., made investments in the U. S., or are registering your children in U. S. schools. 

Q&A 2.

I was Served a NTA Before an Immigration Judge Without a Date After an Asylum Interview

USCIS said they were going to send me a second letter with a date to appear before an immigration judge I have waited for two months and no letter yet. I never failed to check my mailbox one day after my interview. I was surprised that the court sent me a letter stating that I failed to appear. So I am ordered to me removed in absentia. What do I do?

Mr. Lee answers:

You should of course have a legal representative who should request to see your immigration file. Upon seeing such, he or she should be able to determine whether there was defective service of the Notice of Hearing. If so, he or she should be able to file a motion to have your case reopened. 

Q&A 3.

Adjusted My Status But What Are My Options if I Want to Vacation Back Home and Come Back to the U.S.

I came on a J-1 visa and after completion of my program decided to study in the US and applied for an adjustment of status to the F-1. I want to visit family back home in Germany during my summer break from school. What are my options for getting the visa I need to come back and how long will it take. I only have 10 days in Germany. I received a new i-95 when my adjustment got approved.

Mr. Lee answers:

No one can guarantee you that a U. S. consular officer will be able to approve a visa for you within your vacation time. Although it is likely that you would be able to obtain the visa in a short period of time since you were previously given a visa in a different category, things occur sometimes that can delay an adjudication of a visa application. In your case, you should allot more time in the event that things do not go smoothly within 10 days. Otherwise you may consider traveling overseas when you have more time. 

Q&A 4.

How Long Can I Stay in the USA If I Plan to Marry my American fiancée?

I am a Canadian citizen.  I own property in Vermont with my fiancée and we plan to marry as soon as my divorce is final in Canada. If I stay in the USA longer than 183 days, do I face any kind of penalty such as deportation or banishment for a number of years before I can return to the states, or is applying for my green card sufficient?

Mr. Lee answers:

As a Canadian citizen, you are treated as a visitor when you cross the border and allowed to stay a half year as long as U. S. CBP believes that you are a bona fide visitor. The 3 and 10 year bars in the U. S. only occur if you remain in the U. S. illegally for 180 days or more or one year respectively. The 180 days would only begin to be counted when the half year expires. So it would be only if you stay the half the year and then stay another 180 days illegally that you would be barred for 3 years from coming back to the U. S. The fact that you would be marrying a U. S. citizen would not automatically waive the bar. The bar can be waived upon application if you are able to show that your inability to immigrate would cause extreme hardship to your U. S. citizen wife. 

Copyright © 2003-2017 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.