Q & A May 15, 2005
Q & A 1.
Q&A 1.
Alien Will Encounter Problems if He Later Attempts to Reenter
The U.S. Under B-2 Status Soon After Leaving
Mr. Zhao asks:
My parents and sister came to US under B2 on 7/10/2003. My father
was hired in 9/2003 by a wholesale company and applied labor certificate
with Department of Labor. However, it has not been approved. My
father applied extension twice and will be expired soon.
Will my father be allowed reentry if he leaves the country and
later come in under B2? Will he be suspected as having immigration
tendency and be denied at entry?
If they stay in the US and the Department of Labor approves his
application within 180 days of his B2 expiration date, can they
adjust status? If my father’s labor certificate is approved
after 180 days and my father is the only on leaving US on time and
reentered to adjust his status, can my mother and sister adjust
their illegal status together with my father?
Mr. Lee Answers:
1 There is a good possibility that your father will encounter problems
if he later attempts to reenter the U.S. under B-2 status soon after
leaving. The Customs and Border Protection inspector may wonder
why your father is attempting to re-enter the country under B-2
visa status so soon after having stayed in the U.S. for a long time.
2 Under section 245(k) of the immigration laws, an applicant for
benefits under the employment base categories is allowed to file
an I-485 application for adjustment of status to permanent residence
if he/she has not exceeded 180 days of illegal time in the U.S.
prior to the date of filing. According to the latest interpretation
of the provision from U.S.C.I.S., illegal time is counted not only
prior to but after the I-485 filing. Therefore, for example, an
individual who has 155 days of illegal time prior to filing would
be disqualified if he/she had another 26 days of illegality thereafter
through illegal work. I further note that if your family is born
in China, you will most likely not be able to submit an I-485 application
for adjustment of status even if the labor certification is soon
approved as a position in a wholesale company usually falls under
the employment based third category, and that category is presently
backed up for persons born in China. When the date backlogs in a
preference category, only those who filed prior to the date are
allowed to file applications for adjustment of status.
3 In the event that your father leaves the United States and reenters
at a later date after the labor certification is approved and when
the priority date is current to his date of filing, he may be able
to adjust status to permanent residence assuming that there are
no problems associated with his intention at the time of re-entering
the U.S.. On the other hand, there is no provision under present
law to allow his wife and daughter to similarly adjust with him
if they are not maintaining legal status.
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