World Journal Weekly Q & A - February 10, 2008

Q & A 1. 2. 3. 4.


Q&A 1.

Am I Eligible to Apply for Naturalization Now After Pleading Guilty to a Crime?

I got my green card in April 2003 through my employer. In September 2006 I was in a bar and was accused of and arrested for sexually touching someone without permission. The top penalty that I could have gotten would have been 18 months. I chose not to fight it out in the trial and by pleading guilty to the charge, the judge gave me three years probation and three days community service. Can I apply for my citizenship now since my eligibility date will be April 2008 and I know that I can apply 90 days ahead of time? Can I travel outside the United States without problems? I will appreciate your answers.

Dear reader:

An applicant for naturalization must show good moral character for the period of time required for naturalization, five years. Your charge is considered a crime of moral turpitude. You would not be eligible for naturalization until five years have passed since the commission of the event. That would be September 2011. On your second question of leaving the United States, you would best be advised not to do so. Because your incident involved a crime of moral turpitude for which the top penalty could have been 18 months imprisonment, you could be found inadmissible if you take a trip outside the States. For the benefit of you and other readers, there is a petty offense exception, but that is confined to cases in which the top penalty for a crime could not exceed one year and the applicant is sentenced to six months imprisonment or less .

Q&A 2.

What Can I Do When My Parents Were Just Denied for Immigration at the Consulate in Guangzhou for Inadequate Financial Support ?

I am a U.S. citizen and applied for both of my parents ' immigration. Everything was okay until they were interviewed at the American consulate in Guangzhou. At that time, their cases were denied because the consulate said that I have inadequate finances. I am angry because according to the of the 2007 poverty guidelines attached to the I-864 affidavit form of support, I and my husband are both making enough money to sponsor my parents. I did my calculations even before I did my affidavit of support just to make sure that our income fit in the guidelines. We have a family of 4 and will be supporting two others, my parents. Our total income is $35,000 a year, and the poverty guideline says that the minimum is $34,512 annual income. My father is 75 and my mother is 70 and they are both retired. What can I do at this time?

Dear reader:

Unfortunately the poverty guidelines are only that - guidelines. They are not meant as a rule - neither are they binding upon immigration or consular officers. The statute itself states that any person who the consular officer or attorney general has an opinion that he/she is likely at any time to become a public charge is inadmissible. Consular officers take many factors into account including age, health, family status, assets, resources and financial status, and education and skills. In this case, your parents' ages and the fact that they are retired certainly work against them and have prompted the consular officers' ignoring the guidelines.

I suggest one of three options at this time:
1.) find a credible co-sponsor with high income who is able to sponsor both the parents;
2.) find two credible co-sponsors better situated than you but without the very high income of the first and have each of them co-sponsor one of your parents;
3.) if only able to find one co-sponsor of the second type, have that co-sponsor support one of your parents only, and the other parent should withdraw his or her application for the immigrant visa at this time.

Q&A 3.

In an I-485 Case Involving Fake Passport, Fraudulent Entry, and Sponsorship Through U.S. Citizen Spouse, Section 245(i) Eligibility Can Take Care of the Entry Without Inspection and the I-601 Waiver Take Care of the Fraud Attached to the Entry

I came into the United States in 1998 with a fraudulent Korean passport. I do not even remember the name of the Korean person that I was supposed to be but it was not me. I entered the country at the Los Angeles airport without any problems. I applied for a labor certification application in March 2001, but it took a long time and was not approved until July 2007. In the meantime, I married a U.S. citizen and my wife filed papers for my green card in late 2005. When I filed for the I-485 adjustment of status application, my lawyer said that I had to file an I-601 waiver of excludability because of my fraudulent Korean passport. So I did that at the same time. I was interviewed in Chicago Immigration in June 2006, but my case was turned down in October and the letter said that was because I entered without inspection with the fake passport. My lawyer filed a motion to reopen/reconsider my case in November 2006. His argument is that my fraudulent entry can be forgiven through the I-601 waiver because I have a U.S. citizen wife and two U.S. citizen born children. Now that my labor certification application was approved, what can I do now? The restaurant has told me that it does not need me to work there anymore.

Dear reader:

The motion to reopen/reconsider appears to be deniable at this time if that was indeed your lawyer's argument. He would have a better argument if you had used a fake passport with your real name, date of birth and country of birth in it. As the restaurant has no further need of your services, you would not be able to continue any further on obtaining permanent residence through employment sponsorship even if you wanted to. However, the fact that the labor certification was first filed in March 2001 appears to make you eligible for 245(i) benefits as that legislation allows most aliens who filed either immigrant visa petitions or labor certification applications by April 30, 2001, the ability to interview in the United States upon payment of the fine amount of $1,000 as long as they are able to prove that they were physically here on December 21, 2000. That may take care of the entry without inspection charge. The U.S.C.I.S., however, takes the position that section 245(i) does not also provide a waiver for fraud. However, you have already filed an I-601 waiver application which does not yet appear to have been adjudicated. It would appear at this time that you have the choice of either refiling your entire case all over again based upon your wife's sponsorship, or attempting to provide the proof of your eligibility under section 245(i) to the U.S.C.I.S. so that they can consider your eligibility as part of the pending motion and I-601 adjudications.

Q&A 4.

The Importance of Properly Evaluating an EB-1 Extraordinary Alien Case

I came here under F-1 student visa for violin at the Juilliard Institute in New York. I graduated three years ago and am presently playing for a small community orchestra as principal violinist under O-1 status. I applied for classification as an EB-1 extraordinary alien, but was just denied by U.S.C.I.S. I do not understand why because my lawyer was so confident when he took on my case. I have many good references from my instructors at Juilliard and from two assistant conductors and a seasonal conductor at one of the larger philharmonic orchestras. Although I do not have any awards or recordings, I had two performances as a soloist, one when I was a student and the second last year before I put in the application. I have playbills identifying me as the principal violinist and I was interviewed once by one of the bigger newspapers in Japan in a 4 page article. I was called an emerging talent. What should I do now? I only have 30 days to appeal the decision.

Dear reader:

I would suggest that you seriously consider whether you want to appeal U.S.C.I.S.'s decision. There is a very big chance that the appeal will fail given your description of your qualifications for the extraordinary alien category. Quite frankly, I do not understand your attorney's confidence in your case. Perhaps you misread him/her. This category is reserved for those are able to show extraordinary accomplishments. Although the category does not require major prizes and awards (we have done a number of these types of cases successfully without such), I would have looked at your case at the beginning more critically and expressed reservations concerning your ability to pass in this category with such limited achievement. I would have informed you that your obtaining an O-1 classification for extraordinary ability in the arts is not a strong indication that you would be able to obtain EB-1 extraordinary alien classification for an immigrant visa. The standards of proof are much different and it is much easier to obtain an O-1 in the arts than EB-1 classification. Luckily this is the type of denial wherein U.S.C.I.S. usually merely says for you to try a labor certification application instead. You can also try this category again later with more accomplishments. Although optimism is a good quality, it should not cloud an attorney's perception of the merits of an application if that was indeed the case.

 

Copyright © 2003-2008 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.