Q & A April 6, 2003

Q & A 1 2 3

Dear Mr. Lee:

I emigrated to the U.S. from Shanghai in 1989, became a U.S. citizen in 1995 and petitioned for my sister in 1999. The reply from INS, which included the receipt number and the date, said that I would receive an approval notice within 3 months. I didn’t, however, get any approval, so I called INS National Service, and realized that applicants now needed to wait for 18 months before receiving approval notices. No letters, however, have been received since then.

Questions:

1. How long does it take to get an approval notice under this category? Can the received notice date and receipt number be the valid application base, if there are no letters requiring more documents or nothing returned from the INS?
2. How do I know if my petition is still good, or if there have been any changes? Can I find out the truth from the Internet, or somewhere else?
3. If the situation or the address of an applicant changes, can that be corrected?

Dear reader:

1. As your letter is from Los Angeles, I will assume that when you filed in 1999 for your sister, you filed your petition with the California Service Center. According to the California Service Center processing time chart of February 15, 2003, I-130 petitions filed as of February 4, 1998 in your category are only now being adjudicated. (Most current processing times of the four major regions of the BCIS (successor to INS) can be accessed through our web site at www.alanleelaw.com.) The receipt is your official notification that the BCIS has received your case. Inasmuch as the processing time has not yet been reached, you should not expect any further word from the BCIS at this time. In the event that the INS has lost your case, the receipt will be a valid basis from which you can reconstruct the filing with the BCIS.
2. You can assume that the petition is in the service center and will be worked upon when the processing date is reached. The petition is still good, and there have been no changes to this category since your date of filing in 1999. The BCIS now has a new service in which individuals can access their cases by Internet and check the current status. The Internet site is https://egov.immigration.gov/graphics/cris/jsps/index.jsp. I note for readers, however, that the system is new and is not entirely 100% accurate. Persons accessing the web site should not be concerned if their cases do not appear on the Internet site. As long as individuals have a receipt of filing and the processing date has not been reached, they should not worry.
3. If the address of petitioner or beneficiary changes, or there are other situation changes, notification can be sent in writing to the California Service Center.

Dear Mr. Lee:

I am currently in jail. Here is my situation: I came to the U.S. in 1992, and obtained a C-8 card in 7/1993. I lost my case in 1/1998 in court and a deportation order was issued. I didn’t appeal then. I got married with a U.S. citizen in 12/1999. I didn’t apply for a Green Card until 3/2001; however, when the date for INS interview came in 9/2001, I didn’t attend. My attorney said he would apply for extension for me, but he did not, and I didn’t know it. I was caught speeding in Vermont where I had a sushi bar. Then they said I was ordered deported in 1/1998. INS wanted my wife to mail the passport, but my wife didn’t mail it. INS refused my wife’s guaranty, and the judge didn’t allow reopening the case. Now I am appealing.

Question:
What is the chance of going out of jail?

Dear reader:

It seems clear that the INS is intent upon executing the order of deportation in 1998. I cannot tell you your chances of getting out of jail because I do not know the strength of your appeal. Generally speaking, marriages which are contracted while individuals are in proceedings with the INS are presumptively fraudulent. Having a child or children certainly helps to prove the bonafide nature of such a marriage. The Supreme Court in Zadvydas v. Davis laid out the proposition that the INS cannot keep individuals indefinitely detained--that detention of aliens who have been admitted to the United States and who are under a final order of removal must be only for a period reasonably necessary to bring about their removal from the United States. The court held that detention of such aliens beyond the statutory removal period, for up to six months after the entry of a final removal order, is presumptively reasonable. After six months, if an alien can provide a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must rebut the alien's showing in order to continue the alien's detention. The INS, however, to this date has not adhered to the Supreme Court rulings and given the Court lip service by giving a series of excuses including that cases involving special circumstances require continued detention, that detainees are not cooperating with their deportation, or that the INS is very close to obtaining travel documents from the home governments and the people therfore should not be released, etc.

Dear Mr. Lee:

I married a citizen in 10/2002. I have a child in China, and he is 19 years of age now. I don’t know if I can apply for him to come to the U.S.

Question:
Has the Child Status Protection Act extended the child’s age from 18 to 21?

Dear reader:

The new CSPA (Child Status Protection Act -- the old CSPA being the Chinese Student Protection Act) will not assist your child's application for immigration to the U.S.. The CSPA only freezes children's ages at a certain point in the application process. In your case, your son was already over the age of 18 at the time that your marriage was celebrated creating the step relationship. Your son is not regarded as an eligible step child for immigration purposes as the statute clearly states that a step relationship for immigration purposes can only be established where the marriage was celebrated prior to the child's turning the age of 18. Unfortunately you will have to wait until the time that you become a resident alien, at which point you can apply for your son under the second family preference. The waiting time for that category will unfortunately be approximately 9 years according to the visa bulletin of the Department of State. Of course, you can probably shorten the process by 5 years by becoming a U.S. citizen as soon as you are eligible.

Copyright © 2003 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.