World Journal Weekly Q & A - January 28, 2007

Q & A 1. 2. 3


Q&A 1.

Can Girlfriends or Boyfriends Obtain Visas to Accompany F-1 Students?

Zhao reader asks:

I am a master degree student holding F-1 visa. My girl friend is a nurse who is currently in China. Can I apply for her as a “study companion” to live with me in the U.S.? Do we have to get married? If we do, do I must go to China to marry her and come back for applications?

My sister has recently received her citizenship. Can I apply for citizenship through her?

Dear reader:

U.S. immigration law does not recognize girlfriends or boyfriends who want to live with F-1 students in the U.S. as "study companions". Your girlfriend would have to come to the U.S. as the principal on her own visa or under an F-2 visa if you are married. If you marry, you can have your wife apply directly at the U.S. consulate or embassy having jurisdiction over her place of residence with a dependent I-20 form and proof of financial support. She should also bring evidence of all ties and bonds with China, eg-proof of bank accounts, prospects for a job when she returns to China, ownership of real and personal property, etc..

Your sister can apply for your immigration, not your U.S. citizenship at this time. The process for a sibling to apply for a brother or sister is now backlogged 11 years. I suggest that you explore other ways of immigrating, e.g. through employment, rather than relying solely upon your sister's petition unless you have no plans to immigrate to the States in the near future.

Q&A 2.

The Interaction of Security Clearances with Final Asylum & I-730 Approvals

NY reader asks:

I received my conditional asylum approval in May 2001. After the Real ID Act passed in May 2005, I applied for my family in 6/2005. I did the fingerprint on 11/15/2005. My questions are:
1. When will I receive my final asylum notice?
2. When can I apply for my green card?
3. When can I notify Guangzhou?
4. When can my family come to the U.S.?
5. My C8 card will be expired soon, can I apply for A5 card?

Dear reader:

1 You will receive your final asylum notice when your security clearances have been completed. Unfortunately there appears to be quite a number of cases which are being held up for security reasons. It should be noted that security does not necessarily involve any acts by the individuals themselves, but may pertain to information pertaining to others with similar names.

2 You can apply for your permanent residence one year after you have received notice that the conditional basis of your political asylum status has been removed.

3 I assume that you are asking when U.S.C.I.S. in Guangzhou will be notified of the follow to join cases that you have filed for your family members. Notification will come about after the conditional basis of your asylum has been lifted, the U.S.C.I.S. in Nebraska has received and coordinated that information in the I-730 files, reviewed them and approved the petitions for your family.

4 After the I-730 approved petitions are shipped to Guangzhou, U.S.C.I.S. will begin the paperwork to have your family join you in the U.S.. This process from our observations unfortunately takes about a year.

5 As a conditional asylee, you should still be applying for work authorization under the (c) (8) category instead of (A)(5), the latter of which is the designation for a person given full asylum. I do note that if you apply for (A)(5) status, you may get it anyway because U.S.C.I.S. does not seem to put as much importance into the difference between the two as do applicants. Some conditional asylees receive (A)(5) EADs by mistake because a work card is a work card to many U.S.C.I.S. officers and a different legend does not give anyone any greater work privileges or legal status. A second possible result of requesting an (A)(5) card when you are still in conditional status is that U.S.C.I.S. may simply approve your EAD extension with the (c)(8) legend anyway.


Q&A 3.

Will the Daughter be able to Immigrate with the Parents Under the CSPA?

Xuan Reader asks:

My I-140 has been approved recently and I am waiting for the priority date to become current to adjust status. My daughter will turn 21 years old in few months. Will she be able to adjust her status with my wife and I? When the priority date becomes current, how do I calculate my daughter’s age? Shall it count from the date of I-140 approval or the I-485 receipt date?

Dear reader:

Whether your daughter will be able to adjust status to permanent residence with you and your wife will depend upon the day that the priority date becomes current and whether she files for adjustment within the one-year period after that. Under current interpretations of the Child Status Protection Act (CSPA) as seen by U.S.C.I.S. and Department of State, a child who turns the age of 21 is still allowed to immigrate if he or she was under 21 at the time that the priority date became current with credit given for the period of time that the visa petition was pending and another 45 days under the U.S. Patriot Act. Final regulations have never been promulgated for the CSPA legislation, and we would hope that U.S.C.I.S. soon decides to issue regulations to clarify the many issues of the CSPA legislation. I note that we have attempted to have U.S.C.I.S. headquarters respond on a particular issue of the CSPA in August 2006, and received a response that U.S.C.I.S. is currently reevaluating its policy regarding the CSPA and will be issuing a memorandum outlining policy changes in the near future.

 

Copyright © 2003-2007 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.