World Journal Weekly Q & A - August 19, 2007Reader Asks About Delay in I-485 Adjudication - Is It the FBI Name Checks?Web reader asks: My I-485 was filed to Nebraska service Center more than a year
ago in 2006. I made an inquiry in 2/07 and was told “your
case is not ready for decision, as the reqired investigation into
your background remains open.” In April 2007’s inquiry,
the email informed me “we are actively processing this caused
a longer processing time.” I did an infopass in May and I
was told my name check was still pending and I should send a G14
form to Nebraska Service Center.” I really don’t know
what my status is. My questions are: Dear reader: When I-485 cases take a long time for adjudication, a good bet
is that the case is being held for clearance on the name check.
This has been a sore point with I-485 applicants who have been caught
for years in the name check morass because of FBI failure to complete
the process on a timely basis. Most cases are resolved within months,
but there is a sizable number of cases (approximately 10%) in which
the name that pops up is in a file created before automation in
1995 and the FBI analysts must review the information in a paper
file. In most cases, the name does not even relate to the individual
in question as the FBI will also search for similar sounding names
and dates of birth which may be the same if inverted. A G-14 inquiry
is just another piece of correspondence with the U.S.C.I.S. and
does not elicit any special response. A letter would do just as
well. Unfortunately U.S.C.I.S.'s stock response is that there is
nothing that the agency can do with an FBI name check clearance
as it is beyond the agency's control. By the same token, however,
one of U.S.C.I.S.'s arguments in asking for and receiving the tremendous
fee increases on applications beginning July 30th was the extra
amounts could reduce the time of waiting on the FBI name checks.
If your situation is still unresolved at this time, you can reach
out to your local Congressman or Senator's office for assistance
- although it may be more helpful to have them communicate with
the FBI rather than the U.S.C.I.S.. Factors in Determining Whether a Citizenship Applicant has Maintained Residence in the U.S. During the Statutory PeriodLai reader asks, On April 16, I went for my citizenship test. I passed everything and obtained a certificate saying I did not need to take any test. However, the examiner said my trips in and out of country were too frequent and that during 2001-2002, the time I spent in Taiwan was too long. But I said it was never over 6 months at a time. The examiner also asked me where my husband worked. I answered that he was a doctor in Taiwan and that I was a housewife. I told him that I don’t have a house. I used to own one, but sold it last year, and currently living at my sister’s house. I told him I have three children, one was in graduate school, one in college and the other in a technical institution. They did not live with me. The examiner asked me what did I do while in Taiwan. I didn’t know how to answer that question. So the examiner said I in fact lived in Taiwan, not in the U.S. Therefore, my naturalization application was denied. Could I appeal? Do I have any chances to win? Dear reader: Much discretion is given to naturalization examiners in determining
who is maintaining residence in the U.S. for naturalization purposes.
That being said, there must still be a rational basis behind an
examiner's decision. Looking at your specific situation, the fact
that your husband lives and works in Taiwan, that you are a housewife,
you have no real property here, live in your sister's house, and
your children do not live with you, must be taken negatively. To
file for naturalization, you are required to show that you have
been physically present in the U.S. for least half of the time required
(usually two and a half years out of five). If you never stayed
overseas for six months or more, that is a positive factor. If for
example you had a pattern of seven months in the U.S. and five months
in Taiwan and kept repeating the pattern, it would be difficult
to understand the denial. If on the other hand you had a pattern
of two years in the States followed by trips to Taiwan of five months,
one month in the U.S., five months in Taiwan, one month in the States,
etc., there would be reasonable cause to doubt your continuing residence
in the States in light of the other negative factors. You are entitled
to appeal the naturalization denial, but the chances of winning
may certainly depend upon the pattern of your travel. A Short Summary of Employment Based Immigration for a B-2 VisitorZhang reader asks, I’m on B-2 visa visiting my daughter in the U.S. My daughter will start her junior year in the college next semester. My visa is effective from March of this year until September. I’m a college graduate with a Bachelor’s in Engineering. I would like to know is it possible for me to change status to a permanent resident? How much does it need to do that? Dear reader: Unfortunately U.S. immigration is not yet at a point in which persons with a bachelor's in engineering can change status to permanent residence on the basis of the degree alone. Usually an individual with a degree must find an organization which is capable of sponsoring for permanent residence through a labor certification. For a professional occupation, the labor certification process requires the employer to undertake a recruitment campaign for U.S. workers to demonstrate that you would not be taking a job away from an able, willing, qualified, and available U.S. worker. In the process, the employer must place a notice of job availability on the job site for 10 business days, place advertisements for two consecutive Sundays in a newspaper of general circulation serving the area in which the job is located, place a job order with a State Workforce Agency (SWA), and undertake three further forms of recruitment such as advertising on its own website, placing further ads in a local newspaper, and posting the job availability on internet job sites. Following unsuccessful recruitment, a labor certification application is submitted to the U.S. Department of Labor in either Atlanta or Chicago dependent upon the location of the job opportunity. Processing averages approximately two-four months unless the case is audited. If and when the labor certification is approved, the employer can file an I-140 petition for immigrant worker to the U.S.C.I.S. with evidence of both the qualifications of the employer and individual for the position. I-140 processing takes approximately 6-11 months depending on type of case unless it is premium processed for an additional fee to U.S.C.I.S. An individual is not allowed to immigrate to the States or submit an I-485 application to adjust status to permanent residence until the priority date (in a labor certification case the date of filing with the U.S. Department of Labor) is available as stated in the monthly visa bulletin of the Department of State. When the date is available, the individual can file the I-485 and the case will be processed according to the schedule as put forth by the U.S.C.I.S. on its processing time charts (currently approximately 11 months). Kindly note that filing for a labor certification does not maintain
an individual's legal status in the U.S.. The most common visa for
an individual with your qualifications to remain legally is an H-1B
petition for an individual in a specialized occupation. Unfortunately
the opening date for applying for such will be April 1, 2008 for
a job to begin on October 1, 2008. You may explore other types of
visa statuses to maintain your legality if you decide to remain.
The cost of legal fees and expenses will vary from attorney to attorney.
The Effect of a Prior Deportation Order on the Naturalization ApplicationMrs. He asks, Due to my over stay, I had a deportation against me in 1999 by USCIS. However, I never received the notice. I only found it out in 2000 when I checked my status with the USCIS. In August 2001, I married a U.S. citizen. In May 2003, I received my permanent green card. In May 2006, I filed my naturalization application. I did finger printing in May 2006. I wrote a letter to trace my case in 2/07 and was told that my background check has not been completed. My questions are: 1. Will people who have had a deportation order be able to become a U.S. citizen? 2. How long do you think I will have to wait for my naturalization? I was told some people have been waiting for over 4 to 5 years. Dear reader: 1 You state that you found out prior to your marrying a U.S. citizen that you had an order of deportation. If you or your attorney fully disclosed the details of your prior order, it is certain that U.S.C.I.S. would have determined your eligibility for adjustment of status at the time of your interview. In such case, your prior order will probably not be an impediment to your naturalization. On the other hand, if you or your representative never disclosed that you had prior proceedings, there is a chance that U.S.C.I.S. may ultimately decide that your residence status was illegally obtained and take steps to revoke your status. Persons who have prior proceedings which were unresolved are not eligible for the U.S. citizenship. 2 It is difficult to state how long you will have to wait for naturalization
in your circumstances. According to current U.S.C.I.S. policy, it
will no longer interview applicants for citizenship unless their
background checks are complete. The majority of background checks
are completed without delay resulting in interviews being conducted
within six months of filing. In your case, a prior order may cause
a delay in the background checks. When to File For Citizenship If Out For Most of the Years 2001-2004Zhong reader asks, I’m a permanent resident since 1996. However, from 2001 to 2004, I worked in China most of time and only spent about 2 months in the U.S. each year. Since November 2004 on, I haven’t left the U.S. I want to apply for citizenship now. Will those 3 years leaving U.S. affect my qualification for filing now? When can I file my naturalization application? Dear reader: In your situation, we would suggest that you wait until November
2008 to apply for your U.S. citizenship. Spending two months in
the U.S. each year from 2001-2004 would raise doubts concerning
your maintaining a residence in the States for those years. Under
U.S.C.I.S.'s four year and one day rule, you can apply for citizenship
four years and one day from the time that you return to reside in
the U.S.. The fifth year is given to you through the four year and
one day rule. Possible Problem with Adjustment of Status When Spouse of U.S. Citizen Enters U.S. With Tourist Visa After Marriage and Wishes to Make Application for Green CardMs. Guo asks: I became a U.S. citizen since last year. I am married to my intimate
friend in December 2005 in Shanghai. This year he, as a company’s
legal representative, came to California, U.S. with a travel tour.
We became inseparable and he wants to apply for change of status.
Dear reader: In your husband's case, a U.S.C.I.S. examiner in an adjustment of status interview may be concerned with the bona fides of the marital relationship and your husband's intent in coming to the U.S. on the travel tour. Having a child together would probably negate any concerns on whether the marriage is bonafide. The fact that you married in Shanghai prior to his coming to the U.S. on the travel tour could raise questions concerning his true intent in entering the U.S. Factors that an examiner may look at in determining the question of intent are whether your husband is able to prove that he traveled with the tour after it entered the U.S., how soon an adjustment of status application (I-485) was submitted after his entry, whether he quit his job prior to coming to the U.S., and his and your statements on why he came to the U.S.
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Copyright © 2003-2007 Alan Lee,
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