World Journal Weekly Q & A - June 3, 2007

Q & A 1. 2.

Q&A 1.

Asylees and Their Dependents Must Have 365 Days of Physical Presence in U.S. After Award of Asylum to File for Adjustment of Status to Permanent Residence

Yang Reader asks:

My mother has asylum status and filed for my father and me follow to join. We came to the U.S. in August 2006. I want to visit my aunt in Canada, and have applied for advanced parole. Do I still need a visa to Canada? How to obtain a Canadian visa? Will I be allow to return back to the U.S. without any problem? Also, can the asylee derivative apply for the Green Card after one year of entry, or does he have to physically live in the U.S. for one year in order to apply for the Green Card? (I’d like to spend some time in Canada, so I want to know whether the time I spend in Canada still counts toward this one-year requirement).

Dear reader:

Unless you have a passport from a Commonwealth country, you would need a visa to travel to Canada. You can obtain a Canadian visa at any of the Canadian consulates in the U.S.. You should not encounter any problems coming back to the U.S. from Canada. To apply for permanent residence, you must be physically present in the U.S. for 365 days prior to the application being filed.

Q&A 2.

Reader Has Problem with the FBI Namecheck Clearance. Also Wants to Move to Another Employer Now and Wonders About Effect on Processing of His Case.

Wei Reader asks:

In 1991, I came to U.S. for my PH.D. degree with a F-1 Visa. After graduation, I stayed int the US under H-1B status. In April 2000, the company lawyer started the process for my permanent residency. In 2003, my Labor Certificate and I-140 were approved. In July 2003, I filed I-485(EB-2) adjustment of status and received a receipt number in 8/03. I was fingerprinted in 2004 and 2005. In March 2006, I bought a house in the US. In July 2006 with a local congressman’s help, I understood my case was pending security check.

My questions are:
1. Why does background check take so long? I have been fingerprinted twice and have no criminal or any bad record. I used my first, middle and last name to apply for my Social Security Number and my driver’s license, but on my immigration papers and passport, I didn’t use my middle name. Could these cause the delay?
2. Other than continuous waiting, is there anything I can do to expedite the process and get my green card?
3. In my situation, if I change my job at this time, will it affect the speed of my case?

Dear reader:

1 Unfortunately your situation is the same as approximately 261,000 individuals who have pending security clearances with the U.S.C.I.S. as of January 2007. In many cases, the FBI name check clearance has nothing to do with you, but with someone having a similar sounding name or date of birth. Even names and dates of birth in which first and last names or months and days are possible inversions of a person of interest can trigger long delays on immigration cases as the FBI gives low priority to manually searching for files for which there is no electronic version.
2 At present, there is no great solution to the problem. We have received the occasional response from U.S.C.I.S. that an application is still pending the FBI name check clearance; that once the file is been cleared by the FBI, the file would be adjudicated; and that the U.S.C.I.S. has no control over how long it takes the FBI to clear the case. Michael Aytes, associate director of domestic operations for U.S.C.I.S. wrote an interoffice memorandum on December 21, 2006, "FBI name check policy and process clarification for domestic operations" stating that expedites would only be granted for military deployment, ageout cases not covered under the provisions of the Child Status Protection Act (CSPA), and applications affected by sunset provisions such as diversity visas (DV), compelling reasons as provided by the requesting office, eg critical medical conditions, and loss of Social Security benefits or other subsistence in the discretion of the District Director. He further stated that mandamus filings would no longer be routinely expedited.
3 Your changing jobs at this time could affect the speed of your case if the FBI name check clears and U.S.C.I.S. still has to decide the issue of whether your new position is in the same or similar occupation to the position that you now hold in order for you to take advantage of the portability provisions of AC 21 (American Competitiveness in the 21st Century Act).

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.