World Journal Weekly Q & A - November 11, 2007Counting Age Under The CSPA and Possible OptionDear Mr. Lee, I have an I-140 visa petition and an I-485 application that were filed under the third preference employment category in the recent one month period that Immigration gave for all employment cases to file for their green cards. I also filed I-485 applications for my wife and two sons. My priority date is April 15, 2004 under the China quota. I filed my I-140 petition on August 21, 2006, and it was approved on December 21, 2006. My oldest son was born on February 14, 1986. 1 Is there any argument that I can make even when as per the CSPA my son's age is 21 years and 14 days before the priority date became current or are we just at the mercy of the adjudicating officer to ignore the 14 days? 2 Is U.S.C.I.S. calculating age for the CSPA using the number of months or the exact number of days? 3 I have another I-140 visa petition which I filed under a national interest waiver (NIW)on April 22, 2005. That application was denied and is on appeal with U.S.C.I.S.'s appeals office at this time. Can my son gain any relief from this petition? Dear reader: 1 Your calculations appear to be correct that your son is not eligible under current interpretations of the CSPA. His age could not be considered frozen for purposes of CSPA counting until July 1, 2007, when availability appeared on the visa bulletin. He is given credit for the period of time that the visa petition pended which in his case was 122 days. He needed 136, the period from his 21st birthday on February 14, 2007, until the priority date became current on July 1, 2007. There does not appear to be an argument to give him those required days and so he would be at the mercy of the U.S.C.I.S. and whether it chooses to look the other way to the 14 days. 2 U.S.C.I.S.'s calculation of age for the CSPA involves the exact number of days and not counting by months. 3 If you win your appeal and the current visa availability date
for China remains past April 22, 2005, your son may be able to benefit
under the CSPA as the U.S.C.I.S. counts the time that the case is
pending on appeal as time that can be credited to a beneficiary.
Upon approval, your son would be credited with all the time from
your submission of the I-140 under the NIW filing (for the sake
of other readers, an NIW filing does not require a labor certification
but is a direct filing with U.S.C.I.S. on form I-140) to the date
of approval. Taking Advance Parole When Filing Adjustment of Status Under Section 245(i), Its Dangers and A Possible OptionDear Mr. Lee: I am a specialty cook with labor certification priority date of March 2001, I-140 approval in May 2005 and I-485 with 245(i) fine pending with the U.S.C.I.S. since January 2006. In August 2006, I had an interview in New York City but did not pass because my U.S.C.I.S. decision a week later said that I was barred from immigrating because I took advance parole and came back to the U.S. after having been illegal for one year or more. My lawyer filed a motion to reopen for me in September 2006, but I wonder what I can do now. My wife is also filing with me and our one child is a U.S. citizen. I have a brother and sister who are permanent residents, but my parents remain in the homeland . Dear reader: Persons who leave the United States on advance parole must take
seriously the warnings on the parole document that you may be barred
if you have been illegal in the States. Under the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), most
persons who are illegal for 180 days or one year after April 1,
1997, are barred from reentry for three or 10 years respectively.
A waiver can be submitted, but requires that the applicant show
that extreme hardship would occur to a U.S. citizen or permanent
resident spouse or parent because of the departure. Such would not
appear to fit your situation unless your spouse found an independent
way to immigrate or your parents immigrated to the States. A waiver
is not available through the U.S. citizen child. I do note that
there is a 10th Circuit case (the circuit covers the states of Wyoming,
Utah, Colorado, Kansas, Oklahoma and New Mexico) which holds that
an applicant who is entitled to the benefits of section 245(i) remains
eligible to adjust status even after having left and reentered the
U.S. following more than 1 year illegal stay in the country. In
your case, there may be the possibility of your taking advantage
of such a ruling if you move to that court's jurisdiction and obtain
a same or similar job offer. Under the portability rules of U.S.C.I.S.,
an individual is able to port his/her I-140 to another employer
if the I-140 petition has been approved and the I-485 has been pending
for 180 days so long as the new job is in the same or similar occupation.
However, there is also the possibility that such a move as described
above will not be accepted as you would be moving into the jurisdiction
after your denial and your attempted portability would also be after
a denial. Such factors might significantly weaken your case. Factors in Deciding Whether to Attempt to Reopen an Old Deportation OrderDear Mr. Lee, I and my parents went to the United States in 1995 from Indonesia under a tourist visa. I was only 13 at the time, but my dad applied for political asylum for all of us and the case was lost in the immigration court in 1996. The immigration judge gave us voluntary departure until January 1997. My father has a labor certification pending under the employment third preference since April 2001 which would make him eligible for section 245(i). My fiancee is a U.S. citizen and we are thinking of being married in the next three months. Can we reopen our cases ? Dear reader: Because of your age at the time the proceedings, you would present
much more appealing circumstances for reopening of your case upon
your marriage to a U.S. citizen than your parents. This is of course
assuming that the marriage is bonafide. At such age, you were not
legally capable of making up your own mind as to request for or
violate the voluntary departure order. With your father's situation,
he should determine what is happening with his labor certification
application at this time as the Department of Labor has by and large
completed its backlog of cases. Assuming that he later has the labor
certification approved, he would have a much harder time convincing
the U.S.I.C.E. district counsel's office to agree to reopen his
case because of his violation of the voluntary departure order.
Motions to reopen proceedings by right must be done within 90 days
of the order or else are generally considered untimely and require
the agreement of U.S.I.C.E. unless there are exceptional circumstances
that would move the immigration judge or the Board of Immigration
Appeals to reopen. Filing for NIW in Another Field After Extraordinary Alien (E-11) I-140 Approved and the Revocation ProcessDear Mr. Lee, I applied for immigration under the extraordinary alien category as an archaeologist in 2004 and was approved. Because I am not working in my field (doing computer networking now), my lawyer suggested that I file another petition under a national interest waiver (NIW) in my present area. When we filed, the U.S.C.I.S. not only denied my latest application, but revoked my extraordinary alien approval. What can I do now? Dear reader: Under law, you can contest a revocation by rebutting that "good
and sufficient cause" exists to revoke the petition. Such burden
is upon the U.S.C.I.S. even if it is not a large one to bear. Any
appeal must be filed within 15 days after notice. I note that we
successfully contested the right of legacy INS to revoke I-140 petitions
after individuals had embarked on their journeys to the U.S. in
the Second Circuit Court of Appeals in the case of Firstland v. INS in 2004, but that Congress subsequently passed legislation
overruling the Firstland decision. Possible Options for H-1B Holders Expiring Their Six Year Limit Whose Labor Certification Applications Are Pending But If Approved Will Not Be Within The Six YearsDear Mr. Lee, I am in the sixth year of my H-1B which will expire on October 31, 2007. I filed my PERM labor certification application on December 15, 2006, but have not yet received my labor certification. My category is the employment second category for China born since I have an M.B.A. My lawyer had a lot of confidence and told me many times before that I could get my seventh year extension even if the priority date was not current through getting my I-140 preference petition approved as soon as I got my labor certification. Now she is not so sure. What are my options? Dear reader: There is the possibility that you will be entitled to the three year extension of H-1B status given to those who have an I-140 preference petition approved and whose priority dates are not yet current if you receive your labor certification very quickly and your I-140 preference petition is approved by the time of your expiration on October 31, 2007. The difficulty is of course that the time is coming up very rapidly and U.S.C.I.S. is no longer accepting the premium processing fee for I-140 petitions because of the large number of filings that it received for employment based I-140's during July-August 2007. The second possibility is that you might be able to file both I-140 and I-485 applications and request employment permission in the event that the second preference for China reaches December 15, 2006, by October or possibly November 2007 (H-1B holders have 10 days of satisfactory departure time). If neither of these scenarios comes to pass, you should either seek some other means of maintaining legal status in the U.S. (a sensible change of status request to F-1 status comes to mind) or leave the U.S. until the time that either one year has passed since the labor certification was filed or the I-140 preference petition is approved. If either event occurs, your petitioning organization could request an H-1B extension for you even if you are outside the United States.
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Copyright © 2003-2007 Alan Lee,
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