World Journal Weekly Q & A - May 6, 2007

Q & A 1. 2. 3. 4. 5. 6. 7. 8.


Q&A 1.

What Can I do if I Iimmigrated as a Child, and No Fingerprints or Signature on the Permanent Residence Card?

Guo reader asks:

In 1984, I immigrated to the U.S. with my parents when I was only 5 years old. On my permanent green card, there are no fingerprint or signature. I have no social security card either. How could I keep my green card validly?

Dear reader:

By the age of 14, you were supposed to have filed for a replacement permanent residence card so that legacy INS could capture your photograph and right index finger print for the new card. However, it is not too late if you wish to file for a replacement card at this time. To do so, you must file form I-90 Application to Replace Permanent Resident Card with appropriate fee to the U.S.C.I.S. at one of the following addresses:

For U.S. Postal Service deliveries:

U.S. Citizenship and Immigration Services
P.O. Box 54870
Los Angeles, CA. 90054-0870

For non Postal Service deliveries, e.g. FedEx:

U.S. Citizenship and Immigration Services
Attention-I-90
16420 Valley View Avenue
La Mirada, CA. 90638

You may also file an I-90 online by accessing the U.S.C.I.S. website at www.uscis.gov.

Q&A 2.

Will I be Able to Immigrate Under the DREAM Act if I am Already an Adult and Finished College?

KJ reader asks:

I have some questions concerning “DREAM Act”:
1. Will a person be qualified even if he/she has already become an adult that is currently finished college and because of illegal status could only work on low-level job?
2. How to gather documents for the person mentioned above to be qualified for the DREAM act?
3. What is the chance of this “DREAM Act” being passed? Is this Act part of the guest worker immigration reform program?

Dear reader:

The DREAM Act requirements as listed in past legislative pushes are for students who enter the U.S. before the age of 16 and are present for five years before the date of enactment and who graduated from high school (or GED). They can apply for a six year conditional residence status. After the six years, permanent residence is approved if a person graduates from college or has completed 2 years in a degree program or served in the armed forces. A person is not eligible if he/she has been under a final administrative or judicial order of exclusion, deportation, or removal, unless he/she has remained in the U.S. under color of law or received the order before attaining the age of 16. Conditional residence can be terminated for lack of good moral character, criminal conduct, immigration fraud, national security concerns, dishonorable or less than honorable discharge in the armed forces, and on public charge grounds. The DREAM Act would also allow children at least 12 years of age who are enrolled full time in a primary or secondary school to receive a stay of removal and employment authorization if in the U.S. five years.

1 Becoming an adult, completing college, and working in a menial job would not bar you from consideration under the DREAM Act as seen in past legislative bills. In fact, as you have already finished college, you would already have completed one of the legs for obtaining conditional residence and would generally only have to show that you meet the entry and residence requirements. You would also have completed one of the legs for
a permanent green card because you would only have to demonstrate good moral character, that you are still admissible, and that you have not abandoned residence in the United States during the six year period of conditional residence.

2 You should gather whatever information that you can in order to prove that you have been here in the U.S. prior to the age of 16 years and have resided here ever since. School report cards and transcripts would probably be the best proof of both. Otherwise any other documentation which is reliable should be gathered. Federal, state or city records would probably be the best evidence.

3 The midterm elections of November 2006 were not only a repudiation of the Administration's stance on the war in Iraq but also of the Republican Congress' position that a stiffening of barriers against immigration was all that mattered to the American people. With Democrats in control of both houses of Congress and the President signaling that he would be willing to go along with Comprehensive Immigration Reform, the chances of the DREAM Act being enacted during this Congress appear greater than ever before. Readers should be cautioned of course that the final legislative product may vary from the past version of the proposed Act.

I wish to also comment that passage of the DREAM Act would be highly beneficial to this country as it would greatly help in making proper use of persons like you that we have educated under the American system only to abandon after graduation so that you and many others are working in jobs for which you are clearly overqualified. Under the present state of affairs for undocumented immigrant children, we are squandering a great national resource in brainpower for which many countries of the world are fiercely competing. This state of affairs must not be allowed to go on. The Migration Policy Institute in October 2006 concluded that enactment would immediately make 360,000 unauthorized high-school graduates aged 18 to 24 eligible for conditional legal status, and that about 715,000 undocumented youth between ages 5 and 17 would become eligible for conditional and then permanent legal status under last year's proposed legislation (the Comprehensive Immigration Reform Act of 2006, S. 2611) which has expired.


Q&A 3.

How Can We Immigrate When We (Engineer and Teacher) will Return to China After Expiration of our J-1/J-2 Statuses?

Lucy reader asks:

My husband who works for a big U.S. company in China came to U.S. under J1 visa as the U.S. Company’s trainee for one year. We plan to go back to China in 7/07. On my husband’s J1 visa, it states that he must go back to China to serve for 2 years. He is a mechanical engineer; college graduate and has worked in the railroad field for over 12 years. I am also a college graduate, specializing in industrial electricity automation. I had been a teacher for a secondary middle school for 15 years. Currently, I am holding J2 visa with my husband in the U.S., but I have not found a job yet.

Can we apply for green card? If we can, how to do it? How long will it take and how much will it cost?

Dear reader:

1 China has an all encompassing skills list which requires J-1 exchange visitors along with their J-2 dependents to return to the homeland for two years before being able to immigrate to the United States or apply for H or L type visas. The two-year residency requirement can be waived under certain conditions such as a no objection statement transmitted through the Chinese Embassy to the Department of State, a showing of extreme hardship to a U.S. citizen or permanent resident spouse or child, a U.S. governmental agency waiver by a U.S. agency requiring the alien's services for a program or activity that would be hurt by his/her departure, or a showing that he/she would suffer political persecution upon return on account of race, religion or political opinion. In your situation, you or your husband could probably go through the labor certification process to immigrate to the States. That requires a U.S. employer to go through the paperwork for sponsorship which includes attempting to recruit U.S. workers for the position since aliens can only obtain labor certifications after there is a finding by the U.S. Department of Labor of non availability of able, willing, available and qualified U.S. workers for the position. If you are planning to return to China in July, an employer that is interested in sponsoring either of you could still go through the entire process for your residence visa except that you will not be able to enter the U.S. under an immigrant visa for at least two years after you have left unless you are able to obtain a waiver. I note that labor certification sponsorship normally takes over two years anyway. There is no guarantee of success on labor certification cases, but you both appear qualified for immigration by virtue of your education and working experience. The length of time will vary depending upon the backlog of immigrant visas (for the month of March 2007, the EB-2 category for advanced degrees has reached those applications filed before 4/22/05, and the EB-3 for skilled workers or professionals is up to 8/1/02). There may also be large changes in the immigration laws in the near future which may drastically reduce the period of waiting. As for cost, different lawyers charge different fees for working on your type of case. We do not quote fees publicly although they are reasonable.

Q&A 4.

What Can I do if I Change my Mind After Filing for Change of Status to Another Visa Category Before the Decision? If my Change of Status from F-1 to M-1 is Denied, What Does U.S.C.I.S. Consider my Status to be?

Huang reader asks:

I want to file I-539 form to change my F-1 visa to M-1 visa. After I file it and prior to receiving the M-1 visa, if I change my mind and do not want to go forward, can I do it? How to do it? Can I write a letter to CIS to notify them?

If my M-1 is denied after I submit all the required documents, what will my status be? Will I still be a F-1 status or what?

Dear reader:

1 If you file for a change of status from F-1 academic student to M-1 vocational student and prior to receiving approval change your mind, you can communicate with the U.S.C.I.S. office by letter identifying the application and receipt number, and requesting withdrawal of your application. I suggest in that circumstance that you keep a record of your correspondence with U.S.C.I.S. and send it by means by which you can prove that the U.S.C.I.S. office received it, e.g. certified return receipt, postal express mail, FedEx.

2 If you are still maintaining F-1 status and your M-1 application is denied, such denial should not affect your current status. You are still considered to be in F-1 status.


Q&A 5.

Can I Move to Another Employer now that my PERM Labor Certification and I-140 Petition Have Been Approved and Still Keep my Case?

Dear Mr. Lee,

I have a PERM labor certification that was approved and my company filed the I-140 petition along with my I-485 adjustment of status application to the U.S.C.I.S. in June 2006. My I-140 petition was approved in September 2006, but my I-485 is still pending. My lawyer told me that it is waiting for security clearances. At this time, I am having trouble with my boss and another company has offered me a better job. But I'm afraid that going to another company will mean that I will have to start all over again on my green card case. If I want to get my green card, am I stuck in this job until my case is approved?

Dear reader:

Under the American Competitiveness in the 21st Century Act (AC-21), you are allowed to move to another employer in the same or similar position and keep your case so long as your I-485 application has been pending 180 days and your I-140 petition has been approved. Your employer cannot withdraw the I-140 petition if these conditions have been met. The U.S.C.I.S. expects that you will notify the agency immediately of the changed circumstances. In the event that U.S.C.I.S. sends out a request for further evidence (RFE) or notice of intent to deny (NID), and you are not able to respond with a same or similar position job, your case would be denied. If the evidence of a new qualifying offer of employment is timely filed and it appears that you have a new offer of employment in the same or similar occupation, U.S.C.I.S. adjudicators may consider the approved I-140 to remain valid with respect to the new offer of employment and continue regular processing of the I-485. In your case, you would only have to ensure that your new position is same or similar to the position that you are now holding.

Q&A 6.

As an RN from Canada, Can I Work Here Since I Have a Sponsoring Employer?

Dear Mr. Lee,

I am a registered nurse from Canada and came here three months ago with my Canadian passport and a found a nursing home that is willing to sponsor me under the TN NAFTA visa as a registered nurse. I got my nursing education from China. Can I accept the offer from the nursing home?

Dear reader:

You should be aware that all registered nurses wishing to apply for TN status now need the Visa Screen certification which is administered by CGFNS (Commission for Graduate Foreign Nursing Schools). This requirement has been in effect since July 26, 2004. The Visa Screen certification requires proof of the nurse's education and foreign license, an English proficiency test and passage of either a CGFNS qualifying examination or NCLEX-RN (National Council Licensure Examination). The English proficiency requirement is waived for a foreign registered nurse who has obtained a nursing education in English from Australia, Canada (except Quebec), Ireland, New Zealand, South Africa, the U.K., and the U.S.. A Visa Screen certificate is valid for five years. In your case, you would have to take the English proficiency test as your nursing education was in China. In addition, although U.S. state licensure reciprocity allows Canadian nurses to obtain U.S. licenses and generally avoid NCLEX-RN, the Visa Screen certificate requirement requires the Canadian nurses to pass either NCLEX-RN or a CGFNS qualifying examination anyway.

Q&A 7.

What can a K-1 holder do whose I-485 adjustment of status application which was sent to USCIS six months ago was rejected for incorrect filing and only learned of the rejection now?

Dear Mr. Lee,

We made a big mistake after my wife came to the U.S. on a K-1 fiancée visa. We got married within the 90 days like we were supposed to, but I filed the next set of papers 6 months ago to the wrong address and had them rejected. We did not get the rejected papers back until now. Now it is over nine months since she came here. What can we do?

Dear reader:

The critical deadline is the one for registering the marriage. As you registered within 90 days of entry, you can file the I-485 application for your wife's adjustment of status to permanent residence at this time without fear that you will be penalized by U.S.C.I.S. for missing any deadline.

Q&A 8.

Possible Options When the I-485 Application to Adjust Status to Permanent Residence is Denied Because of Fraudulent Entry

You Reader Asks:

I married to a green card wife in1999. She became a U.S. citizen in 2003 and upgraded my case. We went for interview in May 2005 in Boston and we brought our daughter with us. During the interview, the examiner told us and our attorney that he would mail a letter to our attorney’s office asking me to submit a waiver. The waiver is to describe that if I could not stay in the U.S., my wife would suffer. But the letter never came and my attorney did not file.

In 2006, I received a letter from CSC stating my green card application was denied. The reason was my illegal entry in 1989 and using other people’s passport. My attorney wrote letters to Boston’s immigration asking for the letter, but did not have any response. My questions are:

1. Why was my file transferred to CSC but interviewed in Boston?

2. Can I appeal my case? How long will it take to get a decision?

3. Can I re-apply I-485? If I can, how long will it take?

4. Why Boston’s immigration did not send the letter to us? And why will they respond to my attorney’s letters? Is it because my case was transferred to CSC?

5. If it was Boston immigration’s mistake, will it help me on my appeal?

Dear reader:

1 U.S.C.I.S. has been transferring many cases in all categories from one service center to the other, and from local offices to the service centers during the past two years to more efficiently use its manpower. Many family based cases which had been interviewed at local offices of U.S.C.I.S. were transferred to the California Service Center in an attempt to eliminate some of the backlogs in the local offices. The results have been varied with many cases approved, a number denied, and other cases sent back to the local offices.

2 There is no direct appeal from an I-485 denial. You can file a motion to reopen the determination, but the deadline for a motion is 30 days. There is a possibility that U.S.C.I.S. could deny any motion that you file now on the ground of untimeliness alone. If U.S.C.I.S. accepts and determines the motion on its merits, the timing of the adjudication will depend upon the speed of the local office in dealing with motions.

3 You can reapply for an I-485, and that might be recommended in your case due to the question concerning timely filing of a motion. Currently family based I-485 applications are being scheduled at the local offices within six months of filing. However, it may take longer to schedule your case because of your prior history.

4 It is difficult to know definitively why neither you nor your attorney received a letter from the Boston U.S.C.I.S. office, but possible reasons could be that the office is extremely busy or it was in the midst of sending your case to the California Service Center.

5 There does not appear to be any mistake on the part of the Boston field office of U.S.C.I.S. which could be used in a motion.

 

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.