World Journal Weekly Q & A - May 27, 2007

Q & A 1. 2.

Q&A 1.

Can Reader Use 245(i) to Extend H-1B Status in U.S. Although now Illegal?

A reader asks:

I have a Masters degree from the U.S. and was previously in a job on an H-1B visa. Unfortunately I lost the job in 2003. Since that time, I have done nothing with my immigration status. However, I now have an employer who is willing to sponsor me for another H-1B visa. I believe that I am eligible because I had an approved labor certification under section 245 (i) with my former employer with a priority date of March 2001. As I understand, I am able to file and obtain forgiveness from the U.S. government if I pay $1,000. I visited another lawyer who told me that this could be done. I am looking for a second opinion. Can I do this?

Dear reader:

You are wise to seek a second opinion as you either misunderstood what the lawyer was saying or the lawyer gave incorrect advice. Section 245(i) only applies to immigrant and not nonimmigrant situations. If you have another basis to immigrate, eg. second labor certification, family petition, visa lottery, the U.S.C.I.S. will allow you to interview in the U.S. upon payment of a fine amount of $1,000 because you qualify under 245(i) as an individual who filed a labor certification application or immigrant visa petition by April 30, 2001. I do note that individuals qualifying in this category must also prove that they were physically present in the U.S. on December 21, 2000.

Q&A 2.

What Weight to Give Newspaper Answers for Your Personal Legal Affairs: the Fate of K-2 Children of K-1 Fiancees of U.S. Citizens Who Were 18 When the Marriage Occurred

Shawn reader asks:

In March 2005, I wrote questions to your newspaper’s Immigration Column concerning my immigration process and was told to apply for 245(i). Under your guidance, I hired a lawyer to do 245(i), however, my lawyer said that the successful rate would be low because I came to US as K2 status, and I was not qualified for 245(i). But I read your answer repeatedly, you emphasized that as long as I came to US before April 30, 2001, I would be qualified.

I came to U.S. under K2 in 1999 when I was 53 days away from reaching 21 years old. Before turning 21, I filed I-485. My mother received her green card in 2000. On the date of my interview in 1/2001 I had already turned 21, the examiner cancelled my interview. My mother then applied I-130 in 1/2001 for me. My stepfather also wrote letters to the White House, their reply stated my case “had not yet been denied”. But in 12/03, I received a notice from CIS asking me to leave the county in 6 months. My mother was naturalized in 2004 and my I-130 was upgraded. I did not go for my first Guangzhou consulate interview but applied for extension. My lawyer is preparing papers for me to give it to the examiner to cancel the “10 year bar” restriction. But the lawyer told me the examiner has discretion, so there’s still a possibility that I will be barred from entering the U.S.. My questions are:

1. If I entered U.S. under K2 visa, can I use 245(i) to adjust my status?
2. If I can use 245(i) to adjust my status, can I have one of your lawyers help me, or can you recommend one to me?
3. If I am not qualified, what should I do?

Dear reader:

For you and all other readers, kindly remember that the advice that you read in any newspaper including this one (even from lawyers) should not be relied upon for your individual case. The caution is expressed in every column of answers in the newspaper. Please also understand that the newspaper gives readers' questions to different lawyers who give answers based on their varying degrees of familiarity with the area. Also that there is no substitution for having an appointment with a lawyer who can devote a period of time to your questions rather than a lawyer giving an answer based upon a short question(s) on a piece of paper. I personally would not have given such an optimistic answer as you attribute to this newspaper in 2005 or 2006 since the prevailing view of U.S.C.I.S. officers was that you were not eligible to adjust status to permanent residence unless the marriage between your mother and stepfather occurred before you turned the age of 18, and that you would not be able to adjust under a separate provision of law, section 245(i). Their further view was that if the marriage happened on or subsequent to your 18th birthday, you would be stuck in the situation in which U.S.C.I.S. would not adjust your status based upon your relationship with your stepfather, and your staying in the United States accumulated illegal time as a K-2 was ineligible to change status to any other non immigrant status or to adjust status to permanent residence through any other means than through the step relationship.

The above having been said, there is now hope for cases like yours as Michael Aytes, the associate director of domestic operations of U.S.C.I.S., clarified in a memorandum dated March 15, 2007, "Adjustment of Status for K-2 Aliens" that K-2 aliens seeking to adjust status are not required to demonstrate a stepparent/stepchild relationship with the petitioner in order to adjust status to permanent residence. Mr. Aytes pointed out that officers should not limit the adjustment of status of K-2 aliens to persons under the age of 18 based on the term "minor child" in the governing statute as the statute does not have a definition for the term. He stated that officers should allow for the adjustment of status of K-2s to the age of 21, provided the requirements of adjustment of status in general were satisfied.

In your case, however, there are still questions as you are well over the age of 21 and you reached that age in the year 2000. You also received a denial from U.S.C.I.S. in 2003 according to your letter. Although the U.S.C.I.S. while not promulgating regulations for the Child Status Protection Act (CSPA) has been fairly strict on its applicability where children have aged out, the Board of Immigration Appeals and the federal courts have been more liberal in applying the CSPA to cases like yours. It may be possible to request consideration from U.S.C.I.S. through motion or to assert your right to immigration if and when you are served with notice to appear before an immigration court.

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.