World Journal Weekly Q & A - May 10, 2009

Q & A 1. 2. 3. 4.


Q&A 1.

Divorce was Done in Las Vegas, but a Court Judgment in China Says No Divorce. Can I Legally Marry Another in the U.S.?

Kevin Reader:

I want to marry a U.S citizen to apply for green card. But I encountered problems with my divorce.

I am currently holding a F1 visa, I came to U.S under H4 visa. My ex-wife at that time had a H-1B visa which expired in December 2007. She went back to China to wait for her green card priority date to become current (EB2). In July 2008, I got the divorce paper with my ex-wife in Las Vegas. My ex-wife and I had a U.S. born child and she took our child with her. I also filed divorce suit to the court in China. In fall of 2008, my ex-wife disagreed due to child custody and property issues, so the court’s judgment was “no divorce”. Since then, my ex-wife and our child disappeared in China.

Can I still marry the U.S citizen and adjust my immigration status under this situation?

Dear reader:

Divorces in the United States are given full faith and credit regardless of the state in which the divorce occurred. Of course, the divorce must go through the proper procedure to be immune from challenge, but so long as all proper procedures were fulfilled, U.S.C.I.S. would regard you as divorced even if there is subsequent challenge by your ex-wife.

Q&A 2.

Can I Apply for Medicare and What Are the Limits on My Reentry Permit for Trips Overseas?

Hua reader asks:

I immigrated and obtained my green card in September 2006 and now 84 years old. I have two questions:
1. Can I apply for local Medicare?
2. I had received a reentry permit from 6/2008 to 6/2010. I went back to my homeland for medical treatment in 2008 for about 9 months. Can I use the same reentry permit to go back again in August 2009 and come back in June 2010. If the answer is no, do I still need to use this reentry permit if I only go back for 4 months? The reason I asked was I worry that Custom Officers might give me hard time during my return.

Dear reader:

1 We previously spoke with a Medicare representative who informed us that Medicare part D is a prescription drug coverage program open to U.S. citizens and lawful permanent residents in the U.S. for five years. As you have only been in the U.S. since September 2006, you would not appear to be eligible. You may contact Medicare at
1-800-Medicare (1-800-633-4227) or visit www.Medicare.gov if you have further questions.

2 A reentry permit allows a a U.S. permanent resident to leave the country for up to but not including two years on a single trip. It is not a guarantee of trouble-free reentry, but serves as an indication to Customs and Border Protection that you had taken the proper step to notify the government that you would be leaving the U.S. for extended trip(s). You can use the same reentry permit in August 2009 and return before the expiration date as the permit allows multiple reentries.

 

Q&A 3.

What are My Chances of Immigrating or Status Change to Student Since I Was Arrested on Entry, Lost my Appeals, Am now Catholic, Have a U.S. Citizen Brother, and a Permanent Resident Wife?

Jason reader asks:

In 9/2000, when I sneaked into U.S using other person’s passport at LA airport, I was arrested. In 11/2000, I was bailed out. Later, I lost my political asylum claim in Immigration Court and my appeal was also lost. In 2003, I appealed to the federal court. Before the court made a decision, I withdrew my appeal.

I don’t have 245(i), but have an I-94 card. Do I have a deportation order? I could not obtain C8 card in N.Y., but I got them in 2005 and 2006 using a Chicago address by a law firm. How could it be? Last year, I obtained my high school diploma, and now study in a community college. Could I change to student status? I am now a Catholic and was baptized in the U.S.. Can I use this as a base to reopen my case? My brother is a U.S. citizen, my spouse is a green card holder, can they apply for me? If I could change status, what should I do?

Dear reader:

Under the circumstances that you have described, you have a final order of removal against you. In order for U.S.C.I.S. to continue approving asylum based C(8) employment authorization cards, there must be an active application. There is a possibility that you have filed another application for political asylum. You will not be allowed to change to student status as you are illegal, and there is no basis for U.S.C.I.S. to change your status to student. It would take an extremely generous U.S.I.C.E. attorney and immigration court to allow you to reopen your case just based upon the fact that you are now a baptized Catholic. If your brother decides to apply for you, the waiting line under the F-4 category for siblings is approximately 12 years. For a green card holder spouse, the waiting time is approximately 4-5 years. Your spouse of course could shorten the time if she becomes a U.S. citizen. If you were paroled into the U.S. in 2000, you may be able to later adjust your status to permanent residence despite the order of removal if and when your spouse becomes a U.S. citizen. I do note that because you sneaked into the U.S. using another person's passport, you would also have to file for a waiver of the fraud and prove that extreme hardship would be visited upon your spouse if you returned to your home country.

 

Q&A 4.

As a Former Communist Party Member, Can I Become a U.S. Citizen?

Hong Reader asks:

1. Is there a definitive rule in the USCIS for the people who had previously joint China’s Communist Party but now want to apply for naturalization? Will those people allow or disallow for naturalization?
2. What do those people have to know when filling their N-400 applications if they are allowed to be naturalized? Is there a specific rule or requirement for them by the USCIS? What should those people do in order to smoothly become an U.S. citizen?

Dear reader:

1 An applicant for naturalization must be attached to the principles of American democracy. An individual who is still attached to the principles of communism would not be eligible for naturalization.

2 Persons who were former members of the Communist Party should already have disclosed such information when they applied for their permanent residence. There must be five years separation from the Chinese Communist Party before an individual is eligible to immigrate. So long as there is renunciation of communist ideals, no affiliation with the party afterwards and an embracement of democratic ideals, a former Communist Party member should be allowed naturalization so long as he/she applies 10 years after the affiliation ends. I do note that a non-meaningful membership in the Communist Party would not bar anyone from permanent residence or U.S. citizenship. "Meaningful association" means that the membership was more than a voluntary listing of a person's name on the party rolls, and it has been held that a person who was a member for a year, ran the party bookstore, paid his dues, and attended meetings, was not considered to have a meaningful association with the party.

 

Copyright © 2003-2012 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.