Published on the World Journal Weekly on June 7, 2015

 

Q&A 1. 2.


11 Years Holding the Green Card, Will My Absence of Over A Year Delay My Citizenship Application?


A California reader asks:

I am a green card holder since 2004.  In 4/2012, I went back to China under “reentry permit” and came back to the U.S. in 9/2013.

Am I eligible to apply for naturalization now?  Or I must recount the time from 9/2013 for naturalization?  If I provide a reasonable explanation for staying in China that long, will USCIS grant me for naturalization?  When can I apply for naturalization?  If I go back to China again, what will be the longest time I can stay overseas?

Mr. Lee answers:

Unfortunately time spent outside the U. S. for a year or more interrupts the period of residence for naturalization purposes. For situations like yours, there is the four-year and one day rule under which you can apply for naturalization four years and one day following your reentry in September 2013. U.S.C.I.S. will not accept a reasonable explanation for staying in China over one year. To be safe, you should spend at least half of every year in this country and any one absence should not be 6 months or more.

Q&A 2.

Will Son be Barred from Immigration Because of DUI? Is He Eligible for the CSPA Consideration?


A mother asks:

My husband and I immigrated here through my sister’s application.  At the time of my sister’s filing for us, our son was only 10 years old.  Unfortunately, when our priority was current, my son had aged out and he could not immigrate with us.  In 2004, my son came to U.S. and later transferred status to student.  Unfortunately, he only attended school for 2 years and stopped due to our financial difficulty.  In 7/2008, I became a U.S. citizen and applied for my son under F-1 category.  My husband remains green card status.
In 11/2012, my son was arrested due to DUI and was sentenced to jail for 65 days.  After jail time, an Immigration judge wanted to deport him and we requested for voluntary departure, therefore, my son was not issued for a deportation order.  My son soon left and went back to Taiwan.  His passport was not stamped for inadmissibility. 

My question is that do we need to file I-601 for him?  If we do, should we file now or wait until his priority becomes current?  Can we still argue the CSPA on my sister’s application for my son? We have only one son and need him to be reunited with us and take care of us.  My husband is 65 and I am 62.  I lost a kidney 3 years ago and we both have heart problems.

Mr. Lee answers:

There are usually two questions for CSPA (Child Status Protection Act) consideration – the first whether the child’s age is under 21 taking into account the CSPA calculations, and 2nd whether the applicant took affirmative steps like filing an immigrant visa application or even paying the fee bill of the Department of State within one year of the priority date becoming current. CSPA calculations on age allow the time that the petition was pending with U.S.C.I.S. to act as a credit against age. Also that a child’s age only becomes frozen when the priority date becomes current. I do not know your specific situation to tell you whether your child is still eligible for the CSPA, but you would have to consider these factors in making a CSPA argument. On the question of whether your son is barred and needs an I-601 waiver for an overstay, he would probably not given the circumstances that you describe. F-1 student is not a status under which a person is usually barred, and if your son left on time when he was given voluntary departure, he would appear to be OK on that score. Insofar as the DUI is concerned, that is usually not seen as a crime involving moral turpitude that would exclude him from the States. If you apply for your son in July 2008 under the F-1 category, your son would probably expect to have a final interview for immigration sometime within the next 1-2 years.

 

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.

 
   
 

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