Q & A May 14, 2006
Q & A 1. 2.
3.
Q&A 1.
Security Clearances – A Huge Problem with USCIS
Wu Reader asks:
My husband, my son and I immigrated to U.S. in 1/1999. In 8/2004,
my husband and I passed San Francisco’s immigration for naturalization
tests. In 11/2004, my husband received his sworn in notice and became
U.S. citizen, but as of today, I have not received any notice. In
12/04, 4/05 and 8/05, I went to immigration requiring my case and
was told that my background check was still pending.
Judge Marilyn Hall Patel reported on the newspaper that under normal
situation, the background check would be complete within 48 hours.
Since my husband and I came to U.S. in 1999, we worked and lived
together. We never had any background problem, but my husband was
naturalized and I was not. What should I do at this time?
Dear reader:
Unfortunately, security background checks have become a huge issue
in many cases. At the American Immigration Lawyers Spring Conference
on March 24, 2006, Michael Aytes, Acting Director for domestic operations
of U.S.C.I.S., stated that background checks are the bane of existence
affecting U.S.C.I.S. credibility and hurting its ability to identify
and adjudicate, and that he would work with the FBI to accelerate
responses. However, he pointed out that the background checks yield
extraordinarily valuable information. At this time, U.S.C.I.S. is
at pains to keep informing the public that the matter of background
checks is not within its control and that it can only ask the FBI
about the cases. The law does allow naturalization applicants sue
in federal court if a decision is not rendered in 120 days. You
might consider the strategy. Otherwise, you or your legal representative
can keep checking with the local immigration office and perhaps
enlist the aid of a local Congressman or Senator to keep reminding
the agency of the pending status of your naturalization application.
Q&A 2.
Student’s Ability to Adjust Status to Permanent Residence
or Otherwise Obtain Immigrant Visa Overseas
Chen Reader asks:
I am in the U.S. and have a student status (currently applying
for green card). Can I be interviewed in the U.S.? If not, I will
turn 18 years old next year in April, if I get the green card can
I leave the country?
Dear reader:
If you have a valid student status in the U.S., you would be allowed
to adjust status to permanent residence in the country without having
to leave provided you otherwise qualified for immigration. If you
do not have a legal status at this time, whether you can adjust
status in the U.S. will depend upon the particular facts of your
case. There is insufficient information in your query for an answer.
If you are not eligible to adjust status in the U.S., but can consular
process your immigration papers at the American consulate or embassy
in your home country, you will have to assess the risk of leaving
the U.S. in order to attend a consular interview. The major question
will be whether you are subject to a 3 or 10 year bar for having
remained in the United States illegally for 180 days or one year
respectively after April 1, 1997. Generally, an F-1 student is not
subject to the bars unless he/she has been the subject of a decision
by U.S.C.I.S. or the immigration court negatively affecting the
student status and (in most cases) remains for the above periods
of time after the issuance of the order. If you are able to obtain
your permanent residence through adjustment of status or consular
processing, you can safely leave and return to the U.S. as long
as the U.S.C.I.S. or consular officer did not err in granting your
permanent residence when you had, for example, a criminal background
which would render you excludable or a prior order of deportation
or removal which was never reopened.
Q&A3.
Adopting Relatives and then Applying for U.S. Immigration Status
– Potential Problems
Li Reader asks:
My uncle and his 2 sons applied for immigration 10 years ago through
his U.S. citizen sister(my aunt). Because he was married at the
time, so he filed a fraudulent divorce. However, AIT found out and
he was excluded from immigration. Later on, my uncle had a car accident
and was disabled (with documents). Last year, my grandma wanted
to bring my nephews visiting the U.S. but my 2 nephews were denied.
Now, my U.S. citizen aunt who is single wants to come back to Taiwan
and adopts my uncle’s 2 sons and brings them to the U.S..
Will she be successful?
Dear reader:
Your question does not disclose either the age of the uncle's two
sons or the whereabouts of the natural mother. I will assume for
purposes of your question that the children are under the age of
16 (the age by which they must be adopted for immigration benefits
to be bestowed) and that the natural mother is still living (you
have not stated that she is deceased although you have recounted
the physical problems of the father). In such case, the two sons
would generally not be considered orphans, and any adopting parent
would have to adopt the children and then prove two years of legal
and physical custody over the children before any petition could
be given to U.S.C.I.S.. Whether the aunt is willing to live with
the two children in Taiwan for two years is a question that she
must consider. Assuming that she is willing to do so, or that the
children can in some way be regarded as orphans, they will have
to convince both U.S.C.I.S. and the AIT that the adoption is done
for a reason other than immigrating the children to the States.
I cannot foretell whether such an application would be successful,
but you have already noted the unfavorable factor of their prior
immigration application based upon the father's fraudulent divorce.
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