World Journal Weekly Q & A - August 26, 2007

Q & A 1. 2. 3. 4.


Q&A 1.

Attempting to Obtain Extension of Time to Delay Immigration to the U.S. Before and After Immigrant Visa Interview at Consulate

Shawn asks:

My mother applied for my sister’s family of three. We expect the priority will be current in the end of 2008. After my sister’s family passed Guangzhou interview, can they:
1. request for a delay entry to the U.S. ?
2. how late can they request to?
3. if it is possible for their delay entry, where, when and how to request?

Dear reader:

It is much easier to delay the processing of a permanent residence case prior to it clearing processing at the National Visa Center and being forwarded to the U.S. consul in Guangzhou. In addition, a visa applicant can delay an immigrant visa appointment at any consulate or embassy for up to but not including a year and still keep the case. However, if you are still focusing on the question of your sister's family delaying the date of entry after passing the interview in Guangzhou, immigrant visa holders are generally allowed six months to enter the U.S. following the issuance of the immigrant visas. If they are unable to enter within that time period, the visas will no longer be valid for entry and they would have to return the immigrant visa packages to the consulate with explanation of the reason for delay. If amenable, the consulate would begin the process of sending out forms for them to fill out again and to affirm that they have all the documents required to further process their immigration.

 

Q&A 2.

Can Custom Marriage in China in 1996 Between Petitioner's Father and Stepmother Form a Stepchild-Stepparent Relationship Recognizable by U.S.C.I.S.?

Lin Reader asks:

I immigrated to the U.S. through my U.S. citizen husband’s application in 1999. On the form of the relative column, I did put down my step-mother’s name. In 10/2006, I became a U.S. citizen. I want to apply for my father and stepmother. The trouble was that they did not register their marriage until 10/2002, even thought, they had a village wedding in 1996. What should I do? Can I apply for her to visit first to be reunited with my father and I?

Dear reader:

Unfortunately the immigration laws do not recognize custom marriages in China in 1996 as those have no legal effect under Chinese law. Therefore you will not be able to apply for your stepmother's immigration in the same vein that you applied for your father's. If your father already is or when he becomes a permanent resident, he can apply for your stepmother as his wife although this process will take much time under the current F-2A immigrant visa category quota. If your stepmother has other options for immigration or for a nonimmigrant visa, she could certainly explore the possibilities. Insofar as her applying for a visit to be reunited with you and your father under a visitor's visa, the decision on whether to grant the visa would be in the discretion of the U.S. consular officer. The nature of such a visa would be for temporary visit, and the burden of proof would be upon your stepmother to prove that she intends to return to China at the end of her period of visit.

 

Q&A 3.

Facts About Reentry Permit Application and Processing

Mrs. Chai asks:

I received my green card in March 2002 and live with my only son in New York. My son is to be transferred to Hong Kong by his company for several yeas. I am already 77 years old with poor health and require family’s care. Therefore, I must go with him. My questions are:

1. If I leave U.S. over 6 months, do I must apply for reentry permit?
2. How to apply for reentry permit?
3. After I submit reentry permit application, how long will it take to receive it?
4. Could I leave country after I apply, or do I have to wait until I receive it?

Dear reader:

1 It is advisable to apply for a reentry permit if you intend to be out of the United States for over six months at one time.

2 You would submit form I-131 with current filing fee of $305 to the Nebraska Service Center of U.S.C.I.S. The address if by Post Office delivery is

U.S.C.I.S.
Nebraska Service Center
P.O. Box 87131
Lincoln, Nebraska 68501-7131

If sending by private courier,

U.S.C.I.S.
Nebraska Service Center
850 S St.,
Lincoln, Nebraska 68508-1225

You should submit the form with a copy of your permanent residence card and photo identification such as your current passport & 2 photos.

3 The current waiting time for reentry permits is approximately 4 months.

4 You can leave the country after filing for a reentry permit. The law only requires that you be present in the States at the time that it is being filed.

Q&A 4.

CSPA Counting Rules on Age - When Age is Deemed to be Frozen

New York reader asks:

I applied my older sister and her family to immigrate to the U.S. in 1/1997. She has already gotten her address confirmation letter from USCIS in 12/2006. My sister’s daughter was born on 10/21/1985 and she is now over 21 years old. I know some aged out children are still able to come with their parents by applying certain calculation. I do not know how. Could you please calculate it for me? If she can make it, what documents does she need or do I need to make the case? Where should I notify?

Dear reader:

The generally accepted method of calculating age under the CSPA has the following principles:

1 A child's age is frozen at the time that the priority date becomes current. For the month of August 2007, the priority date which is current for the fourth family preference for sibling cases from most countries is before November 1, 1996. For China born, that date is before July 22, 1996. If you filed for sister's family in January 1997, that date will not become available for some time.

2 Under CSPA counting rules, the time that an I-130 petition was pending at legacy INS or U.S.C.I.S. prior to approval is credited against the child's age. For example, if the I-130 petition took two years and one day to be approved by legacy INS, your sister's daughter would be credited with that period of time and could immigrate until the time that she is 23 years of age.

3 In a close case, an argument can be made for the applicability of the U.S. Patriot Act that gives 45 additional days for a child to be considered under the age of 21 if the age of 21 occurs on or after 9/11/01. We have successfully used this argument in the past.

4 If your sister's daughter is eligible for CSPA inclusion as per the above, you can make the argument to the National Visa Center which is probably still holding your sister's case. If her case has already been transferred to the U.S. consulate or embassy, you can make the same argument to the consular section over there.

 

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.