Q & A Janurary 16, 2005

Q & A 1.


Q&A 1.

The U.S. citizen spouse controls the process of the alien spouse's permanent residence application

A mother asks:

I came to U.S. in February 2001 under visitor visa. At the time, my boyfriend proposed to me and I said yes. I did not want to wait for fiance visa but came under visitor visa.

I was married in May 2001 and applied petition in August 2001. In 1/03, I had my first interview. My husband heard rumors that the divorce rate would be high once wife obtained green card, and at the time the reason for petition was for me to obtain a working permit, therefore, during interview my husband did not bring proper documents and was not cooperative. I did not pass the interview. In 3/2003, we mailed in all the required additional documents in a timely fashion. In 5/2003, our daughter was born. However, as of today, I have not received any information from INS. When I called or wrote to INS regarding my case, the answers were always “in process”.

I’m planning to visit my parents in Taiwan with my daughter. Although I applied for the advance parole, would I have problem entering the country? If my husband continues not cooperating at the second interview in the future, should I continue waiting for my green card? Would I get it?
During my pregnancy, I had severe sickness and could not work, my husband was fired from work at the same time. My nurse suggested that we applied for a medical card. Would that affect my application for green card?
Ps: The nurse told me that by applying medical card would not affect my green card application and she even gave me a copy of the relevant law. Thanks.
The mother of Little Pretty


Dear reader:

It appears that you and your husband have a bonafide relationship as evidenced by the birth of your child. Generally, the U.S. citizen spouse controls the process of the alien spouse's permanent residence application. The citizen can be cooperative or can withdraw sponsorship at any time prior to an adjudication by the U.S.C.I.S.. You have stated that your husband was not cooperative at the time of interview. I assume by that statement that he did not withdraw the petition, but did not bring documents and may have given questionable answers to the examiner. The law provides that aliens who have been abused by their citizen spouses may be able to file a petition by themselves for immigration benefits. Your letter does not appear to suggest abuse.

With your case in its current state of flux, it would probably be better for you to remain in the U.S.. You are not barred under the 3 or 10-year bars of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) for remaining in the U.S. illegally for 180 days or one year respectively after April 1, 1997, but travel outside the U.S. could complicate your case at a later point.

If there is a second interview and if your husband does not cooperate, there is a possibility that you may still immigrate if he brings all the documents and only gives quixotic answers to the examiner. On the other hand, if he refuses to bring documentation or withdraws his sponsorship, your case would most likely fail and you might then be forced to file another case alleging abuse if such is the case.

Short-term medical care during pregnancy should not affect your ability to obtain a permanent residence card. Kindly note that your husband is expected to show evidence of support for you through his own employment or through a co-sponsor filing a joint affidavit of support.

 

Copyright © 2003 - 2005 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.