World Journal Weekly Q & A - February 24, 2008

Q & A 1. 2. 3.

Q&A 1.

Alien Who Entered With a Fake Passport and Marries a U.S. Citizen is Usually Not Allowed to Adjust to Permanent Residence Without Benefits of Section 245(i)

Sophia reader asks:

I used a fake passport came in to the U.S. in 2004 and I was not arrested. In 2007, I married a U.S. citizen. An attorney told me I could adjust status in the U.S. and receive a green card, so I paid that attorney $6,500.00 and submitted my applications. I received a receipt and A number. I was interviewed but was told I must wait for my green card. But 3 months after interview, the Immigration transferred all my files to the Visa Department. I have not received my C9 card. Now, we have a less than one-year-old daughter. What should I do in order for me to adjust status in the U.S.? My file has been transferred to the Visa Department, does it mean I must go back to China for interview? I worried I would not allow to come back in. What should I do?

Dear reader,

Generally speaking, applicants who enter the United States with fake passports and are not arrested are not eligible to adjust status to permanent residence even if married to a U.S. citizen unless they are the beneficiaries of section 245(i) and an approved I-601 waiver of inadmissibility. Section 245(i) benefits are open to those who applied for labor certification or immigrant visa petition by April 30, 2001 and are able to show physical presence in the U.S. on December 21, 2000. The only possible exception (and not a recognized policy of U.S.C.I.S.) appears to be a situation in which the applicant's fake passport that allowed entry into the United States with a valid visa status contained the applicant's true name, date and place of birth. At this time, it appears that your I-130 petition has been transferred to the National Visa Center for consular processing of your case. Going outside the U.S. would subject you to a 10 year bar for being in the U.S. illegally for at least one year after April 1, 1997. You would also be barred from entry because of your fraudulent passport. Both of these bars require an I-601 waiver. If the government does not serve you with a notice to appear (NTA) for removal proceedings, you may decide to remain in the States and wait for the next President to amend the immigration laws to afford relief to not only you but the other 11-12 million illegal immigrants in this country.

Q&A 2.

Adjusting Status as a Refugee Does Not Require an Income Test

Huang reader asks:

My friend received his T1 visa as a legal refugee in 6/2007. Per the regulation, he can apply green card in 7/2008. He wants to know how much income he must file on his tax return to qualify for his green card application.

Dear reader:

Refugees and asylees do not have to show income to apply for and adjust status to permanent residence in the United States. Your friend can still receive his permanent residence even if he is taking means tested government benefits.

Q&A 3.

Circumstances Under Which the Priority Date is Kept When the Child Later Turns 21 and When the Petitioner Naturalizes

Cheng reader asks:

I came to U.S. in 12/05 thru my U.S. citizen husband and received a conditional green card. Because when I got married my son from previous marriage has already passed 18 years old, so my husband could not apply for him. On 12/16/05, I filed I-130 for my son. In 1/06, I received his I-130 approval notice. My questions are:

1. My son is now over 21 years old, but the approval stated my son was “unmarried child under 21 of permanent resident”, can he still be able to use the same priority date as this I-130 approval notice?
2. I am planning to file naturalization paper at the end of 2008. If I become a U.S. citizen, can I keep this 12/16/05’s priority date?
3. I have recently moved, should I notice CIS my new address?

Dear reader:

1 Your son will be able to use the same priority date on the I-130 approval notice since his former category, F-2A unmarried child under 21 of a permanent resident, is automatically converted to F-2B unmarried son or daughter over 21 of a permanent resident.

2 So long as your son does not marry prior to your becoming a U.S. citizen, you can continue to keep the 2005 priority date.

3 If you have moved, you should notify U.S.C.I.S. of your new address through form AR-11. You do not have to notify the U.S.C.I.S. service center that approved the I-130 petition as it has already finished all action on the petition. You may also wish to notify the National Visa Center as that agency is undoubtedly holding your son’s case at this time.

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.