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.

 

Copyright © 2003-2006 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.