World Journal Weekly Q & A - October 21, 2007

Q & A 1. 2. 3. 4.

Q&A 1.

Qualifying for Adjustment of Status Under the Older Version of 245(i)

Wu reader asks:

I am a U.S. citizen. My younger sister came in to the U.S. from New Zealand under H-1 visa in 2002. But her H-1 visa expired in 2006. She is still working illegally in the U.S. but paying taxes annually. I filed I-130 for her in December of 1996. Per the Immigration’s processing time, her priority date should become current soon. Can she interview here in the U.S.? I heard once she paid a fine, she should be ok. What documents do we need to prepare for her?

Dear reader:

Section 245 (i) allows most illegal aliens to adjust status here in the United States upon payment of a fine amount, currently $1,000, when they have otherwise established eligibility for an immigrant visa. It can benefit those who either filed labor certification applications or immigrant visa petitions prior to April 30, 2001, or if under an earlier version of the provision, January 15, 1998. Beneficiaries of the April 2001 date must also prove that they were in the U.S. on December 21, 2000.

As your sister is qualifying under the older version of section 245(i), she does not have to show presence in the U.S. on any particular date in the past. If she is otherwise eligible, she should be able to adjust status when the priority date becomes current. In addition to the approval notice, your sister will have to submit documents of birth, marriage and divorce (if applicable), passport, I-94, financial support papers from you, a medical examination, and photographs when she files the I-485 application to adjust status to permanent residence. She will of course have to also file form I-485 Supplement A and pay the fine amount.

Q&A 2.

Reopening a Deportation Order if You Did Not Appear at the Hearing

Lin reader asks:

I came to U.S. in 2001 and my political asylum application based on Falungong was denied. I had a deportation order due to not showing up in Court. I tried to reopen my case in 2002 but failed (at that time, I had a F-1 status). In 2006, I married a U.S. citizen but not yet register.

My questions are:

1. Should I register my marriage first or try to reopen my case first?

2. Can I reopen the case based on a F-1 status?

3. If my reopen application again is denied due to lack of evidence, what will be the consequence?

4. In what way I could reopen my case?

5. In which city should I try to reopen my case that is easier?

Dear reader:

1 As you entered the United States legally, you would be eligible to adjust status to permanent residence with a bonafide marriage to a U.S. citizen if your case was reopened. However, marriages entered into after individuals have been put under deportation proceedings are presumed to be fraudulent. In addition, U.S. Customs and Immigration Enforcement's (ICE) attorneys oppose many motions to reopen as being untimely. As it may well be that the marriage will be your primary reason for reopening, you should register your marriage prior to attempting to reopen your case. I do note that having children born of the marriage would at least alleviate the concern that the marriage is not bonafide.

2 If you are still holding F-1 status, there is a possibility of reopening based on your present F-1 papers. I note your statement that you tried to reopen in 2002 with an F-1 status but that you failed. Your situation appears slightly out of the ordinary as legacy INS's general policy was not to place asylum applicants under deportation proceedings who were holding valid non immigrant statuses. However, if you failed to keep your I-20 school acceptance forms current, reopening based upon a past F-1 status alone would in all likelihood not be successful.

3 In times past, we would be sanguine in advising that because motions to reopen and the later court or Board of Immigration Appeals decisions are done by papers and not appearance, a failed motion applicant would generally be in the same position as if he/she had never filed the motion. Because of the increased activity of U.S.I.C.E. in pursuing those with final deportation orders, we cannot be so assured as a denial might alert the government to the present whereabouts of the alien. Unfortunately, the very paperwork and evidence required in most motions tends to reveal the addresses of the applicant.

4 In your situation, you state that you had a deportation order as you did not show up in the court . I note that if you never received or could be charged with receiving the order to show cause (charging document of legacy INS before 4/1/97 containing allegations of deportability), you might be able to reopen the order of the immigration judge by demonstrating lack of notice. This would of course not be an option if you or an adult member of the household was served with and signed for the order to show cause issued by certified mail.

5 You can only attempt to reopen your deportation case in the immigration court that issued the order in your absence.

Q&A 3.

Children Do Not Need Citizenship Certificates if They Automatically Became Citizens Through Naturalization of Parents

Sung reader asks:

My wife, children (one is now 14, the other 10 years old) and I all received our U.S. passports in 2004. My questions are:

1. My children do not have citizenship papers. Have they completed their naturalization yet? If not, how can I complete it for them? Can they leave U.S. over 6 months of time?

2. Can they naturalize after they become adults? For example, re-apply for naturalization?

3. Is the citizenship paper necessary? When do they need to use it?

Dear reader:

1 All of your family are now U.S. citizens. Your children became citizens automatically when you and your wife obtained your citizenship statuses. The Child Citizenship Act (effective 2/27/01) allows automatic citizenship where one parent is a U.S. citizen and the child is under 18 at the time and fits within certain criteria. They do not need citizenship papers. As U.S. citizens, they are allowed to leave the U.S. for as long as they please so long as they do not renounce their U.S. citizenships or commit other expatriating acts such as assuming political office or taking high rank in the military of the other country.

2 Your children are already citizens. If they so desire, they can request certificates of citizenship from U.S.C.I.S. by filing Form N-600, but that is not necessary.

3 See answer 2.

Q&A 4.

Bringing a U.S. Citizen Child Back to the U.S. When the Parents are Illegal

Dong reader asks:

My husband and I have a U.S. born son, currently he resides in China with a relative. I now want to bring him back to the U.S. for schooling. But I heard since 9/06 when a child came back into the U.S. airport, his/her biological parent must pick up the child at the airport. Or else the person who brought in the child would be detained and the child would be under custody of the Child Services. My husband and I are illegal here and we do not have any identification. What should we do?

Dear reader:

We spoke with two officers of Customs and Border Protection (CBP) and one said that CBP expects a notarized letter in advance identifying the person picking up the child along with a copy of the proof of status of the parents. When asked about parents not having status, the officer said that there still should be a notarized letter preferably with some type of identification presented to the CBP in advance. On further pressing the officer of the situation if there was no identification, she said to present the notarized letter. She also said that if a flight is coming in on the weekend and if it has not been worked out with CBP in advance, the child would be sent to Child Services. An officer also stated that if the person bringing the child back is a relative, he/she could carry the letter and make arrangements with the airline.

The situation appears to be fairly fluid, so we would suggest the following even though these steps are by no means guaranteed to work out. Perhaps having a relative bring the child back in who has legal status, proof of relationship to the child's parents, speaks English well enough to answer questions and hail a cab and carrying a notarized letter by the parents with some ID of the parents would be acceptable. Or perhaps such a relative with the same qualifications and documentation might be able to pick up the child at the airport. Having a friend pick up the child at the airport would appear to be a less favorable choice. On the question of whether a person bringing in the child would be detained, one of the officers stated that the person bringing the child back should not be detained although he or she might be questioned.

We must warn readers, however, answers are not official responses of the agency.

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.