World Journal Weekly Q & A - July 5, 2009
Q & A 1. 2. 3.
4. 5.
Q&A 1.
Ordered Deported, Can I Reopen My Case Since My U.S. Citizen Sister
Applied For Me, My Parents Are Green Card Holders, and I Am From
China With Two Children?
A Chinese reader asks:
I was ordered deported by the immigration court in New York in
2001. My sister applied for me under the F-4 category in December
2000. My parents are also green card holders. I have two children
born in the U.S. even though I'm not registered for marriage. My
girlfriend is illegal also. We're both from Fujian, China. I have
filed taxes for the past five years. Can I reopen my case at this
time?
Dear reader:
I doubt that anyone would be interested in reopening your case
at this time. There does not appear to be any possible relief that
an immigration court would give you in reopened proceedings. Having
two children born in the U.S. is generally not seen as good enough
to warrant reopening. The priority date of your sister for you is
still far away (Currently processing for cases with priority dates
in October 1998). I would suggest that you may wish to wait to see
what Mr. Obama will come up with in terms of an immigration package.
Aside from that, you could start to do some kinds that might benefit
you in a reopening motion when your sister's priority date becomes
current. Such could include obtaining a complete copy of your file
if you do not already have it; marrying your girlfriend; becoming
more involved in community affairs; and performing good deeds. Reopening
is a matter of discretion, and the more good things that you have
on your side, the better.
Q&A 2.
Ordered Removed, Can I Reopen My Case Since I Came Into the Country
With a Fake Passport, Married a U.S. Citizen, and We Have One Child?
One reader asks:
I came to the United States with a fake passport in 1998 through
the airport in New York. It was a Thai passport, but taken back
by the snakehead, and I only have a copy of the I-94 card. The name
on the card is not mine. I was not arrested when I arrived, but
later applied for political asylum at the suggestion of a consulting
agency and lost the case in the New York immigration court. I did
not appeal. Now I'm married to a U.S. citizen husband and we have
one child born in the U.S.. I never had a petition filed for me
by April 30, 2001, so I know that I do not have 245(i) protection.
Can my husband file for my green card at this time since I was inspected
even though with a fake passport?
Dear reader:
You are referring to the idea that an individual who enters the
States with a false passport can be seen as an individual who has
been inspected and thus eligible to adjust status to permanent residence
without leaving the States. In your case, there may be a problem
of proof since you do not have the original passport and the I-94
card does not reflect your true name. So there is a question as
to whether you would be allowed to adjust status as a person who
has been inspected. What would help your case in this regard would
be your prior admission in papers before the immigration court that
you entered the U.S. in the manner that you now describe. As you
have a final immigration court order against you, you would have
to have your case reopened to qualify for adjustment. Whether the
chances are reasonable or not if you stated the facts of entry as
above to the court can probably only be determined by an experienced
immigration practitioner. I note that if there is a basis for you
to adjust status under your husband, a waiver application for the
fraudulent passport would be required and that it would be based
upon extreme hardship to your husband or to your parents if they
are U.S. citizens or permanent residents. It would be up to you
and your husband and possibly parents to delineate each and every
hardship that they would suffer. If possible, you should obtain
a complete copy of your file if you do not already have it. I finally
note that having another child might be seen as increasing the amount
of hardship on your husband if you had to return to China.
Q&A 3.
What Can I Do Since I'm Getting Close to the End of My H-1B Maximum
Period of Stay and the Company Does not Want to Sponsor Me For My
Immigration at this Time?
One reader asks:
I'm nearing an end of my fifth year of H-1B status (five more months
to go), but my company is hesitant about sponsoring me for a labor
certification because the job market is so bad at the present time
and human resources thinks that they will receive a million resumes.
What can I do to remain legally in the U.S. at this time? I have
a master's degree in accounting from a U.S. university.
Dear reader:
You are referring to one of the H-1B rules that only allows a maximum
of six year's stay in the U.S. under that status unless 365 days
have elapsed from the time that a labor certification application
has been pending, in which case, extensions can be allowed on a
yearly basis. If possible, you can re-double your efforts to have
the company sponsor your labor certification even though it is a
challenging environment at the present time. If the company refuses
to do so, and you believe that you have other opportunities available,
you may transfer your H-1B to another employer that would be more
willing to attempt to labor certify you for a green card. Other
steps that might be possible would be to apply for O-1 status if
you are extraordinary in the sciences or distinguished in the arts;
go back to school in another degree program under F-1 status; or
if the company has an overseas affiliate, spending one year there
and being sponsored back under L-1 status; or leaving the U.S. for
365 days and returning on another H-1B visa for six years if you
manage to secure a cap number for the annual H-1B quota. I do note
that since you have a master's degree from the U.S., you would have
the advantage over those who only have bachelor's degrees or masters
from other countries as there is an additional 20,000 H-1B cap numbers
set aside for U.S. master's and higher degree holders.
Q&A 4.
I Got My Asylum Green Card from China. Do I Need the Chinese Passport
for My Naturalization?
Zhong reader asks:
I obtained my asylee green cards for over 3 years and had not left
the country. I now live in Illinois. Do I need the Chinese passport
for my naturalization application? I do not have one, what should
I do?
Dear reader:
You do not need a Chinese passport for your naturalization application.
In the the event that you make an application to renew or to obtain
a Chinese passport, you could have difficulty with your naturalization
application since you declared asylum from your home country. Affirmative
steps to obtain official documentation like a passport from the
country of persecution could raise questions concerning the basis
of your green card. I do note, however, that for those readers who
have obtained passports of the home country after obtaining permanent
residence in the States, there is usually an argument that some
circumstances have changed from the time of obtaining asylum and
permanent residence.
Q&A 5.
Can My Nephew's Family Easily Re-immigrate to the U.S. After Returning
There in the 1990's After Getting Their Green Cards? If Not, Can
My Nephew Get a Student Visa for His Advanced Study?
Huang reader asks:
My nephew’s whole family completed their immigrant papers,
entered U.S. and received their green cards in early 1990s. After
that, they went back to Taiwan and did not come back to reside in
U.S. They did not do anything else with AIT.
This summer, my nephew plans to come to U.S for an advanced study.
We do not know if he would have problems with his visa application.
What should he do if there would problems? Is there possible for
his whole family to re-file their green card applications?
Dear reader:
Since your nephew's family have been back to Taiwan since the 1990's,
they have undoubtedly lost the right to retain their green cards.
They would have to start from the very beginning if they wish to
immigrate once again to the U.S.. Your nephew may have a problem
coming to the U.S. for study since he has already indicated an immigrant
intent in previously holding the green card. But on the other hand,
he could explain the circumstances and hand over the old green card
to the AIT (if he has not already done so) in the hopes that the
consular officer will be sympathetic and understand his circumstances
enough to give him the F-1 visa.
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