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.

 

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.