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.
|