Q & A February 2003
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Dear Mr. Lee:
I, as a Green Card holder, petitioned for the immigration of our
son in China. Our daughter was the co-sponsor. She supported us,
too. We are 70 and 67 years old, intending to apply for Medicaid
or Medicare.
Question: If we apply for Medicaid or Medicare, will it affect
our son’s case? Will our daughter be still good as the co-sponsor?
Dear reader:
Applying for Medicaid or Medicare may affect your son's immigration
on the issue of financial support. A consulate officer in issuing
an immigrant visa must be convinced that the immigrating alien is
capable of supporting himself or herself in this country. The IIRAIRA
of 1996 expressly makes petitioners in family-based petition cases
fill out an I-864 binding affidavit of support form. Other people
including relatives and immediate family members can also execute
I-864 forms as co-sponsors. If the consulate officer discovers that
the parents are on public assistance and not being supported by
a co-sponsor who promises to support the overseas alien, the officer
usually doubts the bonafide nature of the affidavit of support on
the belief that the co-sponsor would not support the immigrating
alien since he/she is not willing to support the petitioner. Whether
this is a valid assumption is questionable, especially given the
fact that the co-sponsor might not live close to the petitioner
or that a petitioner should not be deprived of entitlement to benefits
just because he/she wishes to sponsor a relative's immigration.
I do note an encouraging sign that the INS recognizes the problem
as its current version of form I-864 no longer asks the question
of whether the affiant has taken any public means-tested benefits
during the last 3 years.
Dear Mr. Lee:
My parents visited me and resided in the U.S. for four years between
1990 and 1999. They received the Green Cards and Medicaid. Then
they went back to China ever since. My mother had a stroke and wasn’t
able to come to the U.S. My father has come and visited me a few
times. Now I am a U.S. citizen, and would like to apply for citizenship
for my parents.
Questions:
- How long does it take to apply for citizenship
for my parents?
- Can I apply for them so that they do not need
to come to the U.S.? Can the interviews, fingerprinting, examinations,
etc. be waived due to their senility?
- Can the examinations be exempted because of their
old age, or can the exam be taken in Chinese?
Dear Reader:
- Citizenship applications vary in time depending
upon the immigration office which has jurisdiction over the individual.
Your letter indicates that you are living in New York. The INS
in New York has indicated that naturalization applications are
taking between 8 to 14 months from the time of filing until the
time of interview.
- Under the circumstances as you have described
them, it would not appear that your parents are eligible for naturalization
as they have not met the physical residence required to become
citizens. The law requires that they be on U.S. soil for at least
two a half years in the five years right before they apply for
naturalization. If they returned to China in 1999 and if only
the father has been visiting a few times since that return, neither
of them appear to be eligible. In addition, the INS would not
waive their coming to the U.S. for interview if they were eligible.
There appears to be a further question as to whether they can
still be considered permanent residents. The permanent residence
card is only good for trips out of the United States for less
than one year. A reentry permit is only valid for entry within
two years of issuance. Perhaps your father's trips to visit you
have preserved his permanent residence status. Your mother may
have a more difficult time in returning to the United States as
she will most likely have to obtain a special immigrant visa from
the consulate because of her extended time outside the United
States. When she applies, the consular officer will inquire into
the circumstances of the illness and whether the lengthy period
of time that she has spent outside the United States can be justified
by the severity of the stroke.
- If your parents overcome the physical residence
requirement in the future, they would not be exempted from testing
in the English language by virtue of their age alone. The INS
will only waive testing in English if your parents can show that
they have held the green card for 15 years. If your mother's stroke
is of such severity as to render her physically unable to test,
she would submit form N-648 (Medical certificate for disability
exceptions) along with the N-400 application for naturalization.
The N-648 must be completed by a licensed medical doctor, Doctor
of osteoapathy, or licensed clinical psychologist.
Dear Mr. Lee:
I entered the U.S. with a B-2 Visa. After extending it for half
a year, I changed it to an F-1 Visa. I applied for an extraordinary
ability visa in 3/01, and the I-140 was approved in September. I
received INS receipt for the I-485 application in December. Since
then, I have stopped going to school. I did the fingerprint in 1/2002,
and my lawyer informed me that my file was transferred to the local
INS, i.e. INS in New York in November. Currently I am waiting for
the I-485 approval.
- My advance parole will expire soon. If I apply
for a new one and return to China, can I reenter the U.S. without
any troubles by using it?
- I studied at a language school for more than one
year until 12/2001. The school told me recently that I didn’t
have the F-1 status any more because I didn’t go to school for
a long time. If I reapply an F-1 visa, will it affect my I-485
approval (my lawyer said yes, but some other lawyers said no)
In addition, does receiving I-485 receipt mean that the Green
Card is definitely to be issued?
Dear reader:
- In looking at the chronology of events as you have
related them, it is clear that you are not barred under the three
and 10 year bars of IIRAIRA for having stayed illegally in the
United States for certain periods of time after April 1, 1997.
I would assume that if the INS issues an advance parole and you
commit no acts involving bad moral character while overseas, you
should certainly be allowed to return.
- An F-1 student is an individual who holds non-immigrant
intent. As you have already filed an I-485 application to adjust
status to permanent residence, it appears that you would have
problems establishing that facet in reapplying for an F-1 visa
status. It is true that you are no longer considered an F-1 student
because you have not maintained your studies, but you are presently
in a quasi legal state because of your pending adjustment of status
application. In most cases, individuals would be willing to wait
for an INS determination on the I-485 application. In the event
that you require employment authorization, you can request such
through the filing of an I-765 application for employment authorization
with appropriate fee. You have asked whether receiving an I-485
receipt ensures your attaining permanent residence. It does not.
A receipt is only a receipt and only shows that the INS has received
the monies which you have paid it to take in and have an officer
adjudicate your application for adjustment of status. By the same
token, a transferral of I-485 application from the regional service
center to the local INS office does not mean that a case is in
trouble. It has been our experience that service centers transfer
cases out for many reasons, most commonly because the fingerprints
are not able to be read. I suggest that, if there was no fraud
in your application, you wait until the INS apprises your attorney
as to what further information it requires.
Dear Mr. Lee:
I am a U.S. citizen. I petitioned for my adult unmarried son in
China to immigrate to the U.S in 1999. A few days ago I received
a notice from the National Visa Center, asking me to prepare for
the process. My son, however, just got married in China a month
ago.
Question: Will my son still be able to get the visa? If he has
to be petitioned for as an adult married child, can he still use
the original priority date of ’99?
Dear reader:
As your son has already married, he is not entitled to obtain his
permanent residence as the adult unmarried son of a U.S. citizen.
He is, however, still entitled to his original priority date under
the F-3 preference category for married sons of U.S. citizens. Of
course, that preference has a much longer waiting period. You will
not have to send another petition to the INS. You can inform the
National Visa Center by letter of the change of circumstances for
your son, and enclose copies of the marriage certificate and proof
of birth of your son's wife.
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