World Journal Weekly Q & A - August 10, 2008
Q & A 1. 2.
3. 4. 5.
Q&A 1.
Nephew Aged Out Before CSPA Enactment but Appears Eligible to
Immigrate Under the CSPA's New Guidelines
Wang reader asks:
I filed for my younger brother to immigrant and his priority date
was current in 2001. At that time his 1st wife had passed away and
he remarried, therefore, it took a while to receive his interview
notice. In 2003’s visa interview, his son (born 2/1981) had
already 21 years old and could not come to U.S. with my brother.
For my younger brother to keep his green card, he came to U.S. every
year. We did not know we could apply for his son. Per your prior
article, do you think his son is still qualified for CSPA? What
documents do we need to file for his son?
Dear reader:
It remains to be seen what the consular post will do with the new
CSPA guidance from U.S.C.I.S. Also the present whereabouts of the
immigrant files may prove a concern. In the relevant portion of
the guidance, where the priority date had already been reached,
children who already aged out by August 6, 2002, the date of enactment
of the CSPA, and had not yet filed for an immigrant visa or adjustment
of status by the date of enactment are still eligible to immigrate
as children under the CSPA so long as their cases had not yet been
denied before August 6, 2002. This applies to aged out children
who never applied for immigrant visas or adjustment of status and
to those who did subsequently that were denied solely on the basis
of age. Your nephew appears clearly qualified under the new CSPA
guidance which was implemented in compliance with the Board of Immigration
Appeals 2007 decision, Matter of Avila-Perez. The difficulties that
your nephew may still face could involve consular post reluctance
to reconsider the decision as reconsideration would go against the
Department of State's stance that the CSPA is not retroactive (nephew
aged out before the CSPA was enacted) and that a final denial is
effected automatically on the ageout date. These concerns, however,
appear to be covered in both Avila-Perez and U.S.C.I.S.'s recent
guidance. In interpreting immigration regulations, the Department
of State is subordinate to the U.S.C.I.S. The other possible problem
may be the present fate of the immigrant file as your brother immigrated
in 2003. The consular post may have already rid itself of the file
and would have difficulties in processing the nephew's immigrant
case. Aside from these potential problems, you or your attorney
should begin the process by communicating with the consular post
and apprising it of the new guidance and its applicability to your
nephew's case. Your next actions will depend upon the response you
receive from the consul.
Q&A 2.
H-1B Extension or Employment Authorization Document - Which One
Should I Do?
Lee reader asks:
I started my H-1B status in 10/2005 and in 2006 I filed for 2nd
preference I-140 and was approved in 11/2006. My I-485 receipt date
was 11/8/2006, but as of now I have not received any further notice.
My H-1B will be expired on 9/30/2008. My questions are:
1. Should I continue request for H-1B extension? If I should, what
is the procedure?
2. How long do you think I would receive my green card?
Dear reader:
1 Since you already filed the I-485 application, your choice is
either to request an employment authorization document (EAD) on
form I-765 or have your organization sponsor an H-1B extension on
your behalf. The processing time for an EAD is approximately three
months, and you have no permission to work after your current H-1B
status expires until the time that the EAD is approved. On the other
hand, an H-1B extension request automatically allows you to work
for up to 240 days during the time that U.S.C.I.S. is processing
the request. In addition, you are allowed to travel out of the country
under H-1B status during the time that an I-485 application is pending.
Without H-1B status, you have no travel permission unless you have
applied for and received an advance parole from U.S.C.I.S. prior
to your travel. The advantages of an EAD are that it is a much simpler
application and you are not confined to the same employer since
it is regarded as an open market employment card. I cannot make
the choice for you as to whether to request an H-1B extension or
to begin processing an EAD request. That choice is up to you taking
the above factors into account.
2 Assuming that you correctly filed the I-485 request, both the
Texas Service Center and Nebraska Service Center which handle most
of the employment based cases are processing I-485 applications
filed in July 2007. If your I-485 was filed in November 2006, and
you are from any other country than China or Mexico you or your
attorney should be checking with U.S.C.I.S. to determine the reason
for the delay. If you are from China or Mexico, visa availability
only reached for priority dates established in 2006 in August 2008
(6/1/06 to be exact). If your priority date was before 6/1/06, you
or your attorney can begin to check on your case now. If your priority
date has not yet reached, there is nothing to do at this time.
Q&A 3.
Petitioning for Unmarried Son When a Conditional Green Card Holder
Lily reader asks:
I came to U.S. under K-1 visa on 6/2007 and got married the same
month. In 7/2007 I filed I-485 & I-130. I have a son who was
just turned 21 then was unable to come with me. My questions are:
1. If I hold conditional green card, can I apply for my son who
is not married?
2. If I can, can I file for my son using my I-485 receipt instead
of the copy of my green card (since I am still waiting for my conditional
green card)?
3. How long will it take for my son to come?
4. How long will it take if a U.S. citizen files for his/her unmarried
children over the age of 21?
Dear reader:
1 A conditional green card holder can apply for unmarried sons
or daughters. It is not necessary to receive the permanent card
before petitioning for others.
2 You cannot file for your son only using your I-485 receipt as
the receipt is not an indication that U.S.C.I.S. has approved your
case. If on the other hand you receive an approval notice, you can
use that to petition for your son instead of waiting for the actual
conditional green card to do so.
3 It is difficult to predict the movement of immigrant visa quotas,
but currently the F-2B category for unmarried sons and daughters
of permanent residents has a backlog of approximately nine years.
4 A U.S. citizen filing for his or her own unmarried children of
the age of 21 is now facing a backlog of six plus years. If you
are interested in doing so, you would apply for your son at this
time in order to establish the priority date, and then upgrade his
category to the F-11 category for unmarried sons or daughters of
U.S. citizens once you pass your naturalization test and receive
your certificate. You would then be allowed to keep the old priority
date for purposes of the F-11 case.
Q&A 4.
How Can I Get Back the Green Card That I Gave Up in 1996?
Chen reader asks:
My whole family immigrated to the U.S. in 1988. Because of my job
in Taipei, I voluntary gave up my green card in 1996 at AIT. Currently,
my wife and children are all U.S. citizens and I use visitor’s
visa came in and out of U.S.. I am planning to retire and live in
LA with my wife and children.
My questions are:
1. What should I do to regain my green card status?
2. Where should I submit my application so that it would be faster,
Taipei or LA?
3. How long will it take to receive my green card?
4. What kind of documents do I need?
5. Do I need to hire an attorney for the application?
Dear reader:
1 Since you voluntarily gave up your green card, your wife or one
of your children (if over the the age of 21) should petition for
your permanent residence by filing an I-130 relative petition on
your behalf to the Chicago lockbox of U.S.C.I.S.'s Missouri Service
Center. The address of the lockbox is:
Petitioners who reside in AK, AZ, CA, CO, Guam, HI, ID, IL, IN,
IA, KS, MI, MN, MS, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, or WY
must file their stand-alone Form I-130s with the Lockbox using the
following address:
USCIS
P.O. Box 804625
Chicago, IL 60680-4107
Petitioners who reside in AL, AR, CT, DL, FL, GA, KY, LA, ME, MD,
MA, NH, NJ, NM, NY, NC, OK, PA, Puerto Rico, RI, SC, TN, TX, VT,
VA, U.S. Virgin Islands, WV, or District of Columbia must file their
stand-alone Form I-130 with the Lockbox using the following address:
USCIS
P.O. Box 804616
Chicago, IL 60680-4107
If sending by private courier, he or she should send to:
USCIS Lockbox
Attn: SAI-130
131 South Dearborn – 3rd Floor
Chicago, IL 60603-5517
2 I-130 petitions by citizens residing in the U.S. for family
members should be filed at the above address.
3 It should take approximately one year or less to complete procedures
in order for you to be interviewed at the AIT for an immigrant visa.
4 For the I-130 petition, the petitioner will have to show U.S.C.I.S.
proof of U.S. citizenship (naturalization certificate or U.S. passport)
and proof of relationship to you (if your wife is petitioning, copies
of the marriage certificate and prior marriage union dissolutions
of both parties if applicable. If one of your children is petitioning,
copies of the son or daughter's proof of birth, your marriage certificate
and prior marriage dissolution decrees for you if applicable). When
the petition is approved by U.S.C.I.S., you must secure proof of
separation from the military if applicable, a police certificate
from every place that you have resided for at least six months since
the age of 16, a medical examination at a designated facility, photographs
for the green card, valid passport, and affidavit of support.
5 The hiring of an attorney is your personal choice. In your type
of case, some people do it by themselves and some people use attorneys.
Q&A 5.
I am Under the 10 year Bar for Illegally Staying Over One Year
- When Can I Leave Without Penalty?
One loyal reader asks:
I came to U.S. under B2 visa and have been overstayed for over
one year. I will be marrying to a U.S. citizen soon. When I receive
my green card through my husband, can I go back to China to visit
family? Will I be barred and not allowed to reenter U.S. for 10
years since I overstayed for over one year?
Dear reader:
Once you have received your permanent residence, you can leave
the U.S. without fear of being barred for 10 years because you have
overstayed for over one year. The bars do not apply to an individual
who has attained permanent residence.
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