Q & A March 23, 2003
Q & A 1 2
Dear Mr. Lee:
My relative immigrated
to the U.S. in January 2001. At the time, his daughter and son,
who came to the U.S. with him, were both under the age of 21. They
have studied at schools in the U.S. since then. He has to, however,
go back and forth between China and U.S.A. on a regular basis, for
his mother is very ill. Due to the inconvenience, he is thinking
to return his Green Card to the local U.S. consulate.
Question: Will
returning the Green Card affect the legal status of his children?
(The son is 19 years old, and the daughter is 20. Both have Green
Cards.)
Dear reader:
The question
in your relative's case of whether the green cards of his children
are safe if he returns his card to the U.S. consulate depends upon
the category under which he came to the U.S. and the reason, timing,
frequency and length of his trips back overseas since he entered
in January 2001. If he entered through a family relationship, the
green card is generally not revocable for dependent family members
who remain in the U.S. unless the INS can show that the principal
never had an intention to permanently reside in the U.S.. If your
relative entered through a labor certification or other employer
petitioned case, he must have an intent to work for the sponsoring
organization on a permanent basis at the time of entry, and his
not working for the organization at all or only working for a short
period of time could be grounds to revoke the dependent family members'
green cards on the basis that the non-work reflects the principal's
real intent on entry. In your relative's case, relevant factors
for the INS to consider if it wishes to challenge the permanent
residence status of the dependents is the length of your relative's
mother's illness, its severity, prognosis, whether other members
of the family could care for her instead of your relative, the location
of your relative's wife (if he is married), your relative's working
situation in the home country, and any ties and bonds which he established
in the U.S.. Both the INS and U.S. consulate are aware that principals
sometimes do not wish to immigrate because they are satisfied with
their situations at home, and merely wish the green card in order
to give their children better career opportunities in the United
States.
Dear Mr. Lee
I have been in
the U.S. for 12 years, and have held the Green Card for 12 years.
Due to my old age, my memory and ears are no good. I failed the
naturalization test in 1999, so I gave it up. I intend to take the
test in Chinese when I shall have had the Green Card for 15 years.
The problem is that I am not supposed to leave more than three months
each year. During the past 12 years, I returned to China for 6 months
in ’94 because of my father’s stroke. After my father passed away,
I returned for another 4 months. In ‘01, I went back for 4 months
for my own medical treatment.
Question:
Is it that even if I shall have been in the U.S. for 15 years, I
won’t be allowed to take the naturalization test in Chinese in the
future?
Dear reader:
When you complete
your 15 years of permanent residence, you will be allowed to test
in the Chinese language. There is a difference between the required
"period of residence" of 15 years and the requirement
for "physical presence". An individual is only required
to be physically present in the U.S. most of the time. Individuals
have been naturalized by the INS who spent slightly over one-half
of the time physically present on U.S. soil during the required
period of residence. Although there is a presumption that individuals
who leave the U.S. for over six months lose their eligibility for
naturalization, this is only a presumption and can be rebutted by
a good explanation at the time of the naturalization interview.
In your case, your list of absences is not such as would preclude
a reasonable INS examiner from allowing you to naturalize at the
end of the 15th year taking the test in Chinese.
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