Q & A February 2003

Q & A 1 2 3 4


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:

  1. How long does it take to apply for citizenship for my parents?
  2. 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?
  3. Can the examinations be exempted because of their old age, or can the exam be taken in Chinese?

Dear Reader:

  1. 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.
  2. 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.
  3. 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.

  1. 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?
  2. 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:

  1. 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.
  2. 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.

 

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.