World Journal Weekly Q & A - April 6, 2008

Q & A 1. 2. 3. 4.


Q&A 1.

Can Someone Who Entered the Country Legally with a D-1 Crewman Visa Adjust Status to Permanent Residence if Married to a U.S. Citizen or Through Labor Certification Green Card Sponsorship?

Web reader asks:

I came into the United States as a flight attendant with China Airlines in 2000. I had the visa called D-1 for the crewmembers. Since then, a Chinese restaurant sponsored me for labor certification as a cook in November 2001 and we got the labor certification in 2006 and filed the I-140 petition in January 2007. We are still waiting to hear about that. In the meantime, I married my girlfriend who is a U.S. citizen and we just had a baby born two months ago. Am I eligible to apply for my green card status through the restaurant or through my wife?

Dear reader:

Unless you are a beneficiary of section 245(i), you are not eligible to adjust status to permanent residence under either case. In its latest version, section 245(i) allows most illegal immigrants to adjust status upon payment of a fine amount (currently $1,000) if they can demonstrate that they filed a labor certification or immigrant visa petition by April 30, 2001, and were physically present in the States on December 21, 2000. An individual holding a D-1 visa is barred from adjustment of status even if married to a U.S. citizen. Because your labor certification application was begun in November 2001, it is too late to qualify you for 245(i) benefits. If you leave the United States to consular process your immigration case, you would be barred from returning for up to 10 years because of your being illegally in this country for at least one year after April 1, 1997. You may request a waiver of the 10 year bar at the consulate or embassy, but you should note that the granting of waivers is discretionary with the U.S.C.I.S. and it is difficult to foretell the timing even if it is approved.

Q&A 2.

Arrested for a Misdemeanor and Lawyer Negotiating a Deal - Should I Take It?

Web reader asks:

I do not yet have a green card and I was arrested for a Class A misdemeanor and disorderly conduct which my criminal lawyer is negotiating with the prosecutors. He tells me that I can get a one year conditional discharge, not be sentenced, and my case will stay open for one year and then I can withdraw the misdemeanor plea and only plead to the disorderly conduct. I have not had any other problems with the police and this is the first time that I am in trouble. I'm afraid that if I take the deal, I will be deported. Should I do it or not?

Dear reader:

If you are concerned about your immigration status and your chances of winning your case, you should take the deal as it does not appear that the ultimate plea rises to the level of a conviction which would bar you from immigrating to this country.

Q&A 3.

Immigration Scheduled an I-130 Interview for Me and My Wife, But I was Ordered Deported 13 Years Ago. What Are The Pros and Cons of Going?

Web reader asks:

I came to the United States with a B-2 visitor visa in 1992. I was working at a farm in Texas in 1994 when I was picked up by Immigration. I had a deportation order in 1995 that I appealed to the Board of Immigration Appeals and lost in 1997. I married my wife in 2002 and we have a 5 year old son. She had the green card and applied the I-130 petition for me in 2002, and our lawyer told us that was the only thing that she could do at the time. My wife is now applying for U.S. citizenship and should get it in the next six months. The problem is Immigration has sent an interview notice for me and my wife to show up and bring all the documents that we have of a bonafide marriage. We're not worried to show them that we're living together and we can even bring our son. We are worried that Immigration will take me and deport me. Can we argue that my wife will be a citizen soon? She applied over a year ago for her citizenship. Can we tell them that I am the sole support of the family and if I have to leave, my wife and child will have to go on welfare? Should we go or should we not? Can you tell us what is good and what is bad about going? We don't want to lose the petition, but we don't want to find out that I'm going to be sent back home. What should we do?

Dear reader:

You have a valid concern because you have no means of relief at the present time. Even if your wife becomes a U.S. citizen, you still have a final order of deportation that would have to be reopened prior to your being able to adjust status on the basis of your wife's sponsorship. I cannot specifically tell you what to do as advising anyone to disobey an immigration interview request is probably not ethical or legal - however, I can inform you that there is a possibility that you will be detained when you appear. The U.S.C.I.S. in New York, for example recently stated that detention is a possibility in those situations, but did add the caveat that the District would allow the interview to be completed prior to picking up the individual. The arguments that you are thinking of giving Immigration at the interview may be effective, but that would probably be up to the interviewing officer. The New York District did state that arrest at the interview is not automatic but is entirely possible. I also note that although the I-130 petition has been filed since 2002, your wife can always file another I-130 petition for you if and when she becomes a U.S. citizen. That petition would move into a higher class than the one that you presently have pending.



Q&A 4.

Labor Certification Holder with I-140 Approval and Pending I-485 Being Transferred by Employer from New York to Chicago. Are the Labor Certification and I-140 Approvals Still Good? What Has to be Done?

Web reader asks:

I am holding the H-1 visa, and have a labor certification case as an engineer under the employment based third preference category that my company started in 2006. My I-140 petition was approved in March 2007, and I filed my I-485 adjustment of status application in August 2007. The company is in New York, but is transferring me to its branch office in Chicago. My job is going to be the same, and the only change will be the location. Do I or my company need to do anything under the circumstances?.

Dear reader:

A labor certification is geographically limited. Therefore, under normal circumstances, a labor certification which was obtained for a job in New York would no longer be appropriate for a job in Chicago. The thinking is that while there may be no availability of U.S. workers for a position in New York, perhaps there are many able, willing, qualified, and available U.S. workers for the position in Chicago. That being said, you are still allowed to change the nature of your employment and keep the labor certification and I-140 approvals if you are able to show that the change in employment is in the same or a similar occupation. You would have to send notice to the U.S.C.I.S. service center or district office which is holding your case informing it of the change of circumstances and requesting to be allowed to port your case under the provisions of the American Competitiveness in the 21st Century Act (AC-21). You should show U.S.C.I.S. that the job is the same and that your rate of pay is somewhere in the ballpark of your present position.

 

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.