World Journal Weekly Q & A - August 2, 2009

Q & A 1. 2. 3.

Q&A 1.

Reader is Worried About Filing Joint I-751 Application to Remove the Conditional Basis of Husband's Permanent Residence Based Upon Marriage Where He Does not Live With Her.

A Taiwan reader asks:

I immigrant from Taiwan 24 years ago by job transfer. My two daughters were born in the U.S..
Four years ago, I devoiced my ex-husband after 20 years marriage.

During the time of divorce, I met my elementary classmate and decided to peruse my happiness - to have a marriage and companion living together. Because I have my own business and own property here, it was mutual agreed that it's easier for him to move from Taiwan to here in California. We had good time for the first year for two of us. . Three years ago, he moved his daughter and son here to attend high school. I had to marry him in Vegas secretly so he could apply permanent residency for himself and his children. Ever since his children arrived, he lives with his children and I live by myself, because living with his family was not interest. Four of us went to downtown LA and had the first interview in 2007.

Their green card will expire this July and he had prepared all papers. Because children are his priority, so he rents a house by himself without my name. He adds my name to his checking account. We do not have life insurance for each other. In his 2007 tax return, his filing status was head of household and his W2 was 15K/year. In his 2008 tax return, his filing status was married filing separate and his W2 was 72K/year. I filed extension for 2008.

When can I apply divorce without hurting his green card application? Will I be in trouble if I marry and divorce so soon?

Dear reader:

I assume that your husband and his children will file I-751 applications to remove the conditional basis of their residence status through a joint filing of both you and your husband. The paperwork will be filed at the California Service Center of U.S.C.I.S. since you live in California. The Center will look over the submissions, and it has the authority whether to approve the applications or to send them to the local district office for interview. It does not appear that you and your husband have much in the way of joint documentation, and there is a good chance that U.S.C.I.S. will insist upon interviewing both of you. Applying for divorce at this time would certainly damage the chances of a joint filing being approved. On the other hand, a divorced alien may still be able to obtain removal of the conditional basis of the green card by showing that the marriage was bonafide prior to the divorce action. As long as your actions have been aboveboard and your marriage was not made solely for the purpose of assisting your husband and his children in attaining permanent residence, you would not have any trouble with the Department of Homeland Security. The period of time between marriage and divorce is usually not a great consideration since people marry and divorce at all different times.

Q&A 2.

Mother Has Been Outside the U.S. for Almost Six Years and Son Worries About Problems that She Will Have Trying to Re-enter with Her Green Card.

Li reader asks:

My mother is a green card holder and she is 75 years old. She went back to China in Oct 2003 and she had not been back to U.S. since. My mom went back to China to take care of my oldest sister who was sick. My sister passed away couple years ago and now my mom wants to come back to US. I have the following questions:
1. As she’s been out of US for more than 5 years, can she still re-enter to US using her green card?
2. In case she is rejected to re-enter to US by Immigrant officer at the airport, will US immigration arrange her a flight by the same airline she uses when she comes to US? Who will pay for the return ticket?
I really want my mom to come back to US and live with us and her 2 grandchildren but she can’t speak English and she is old. If she is rejected at the entry, I don’t know if there is anyone who will help her to get on a plan and return to China.

Dear reader:

1 Under the circumstances that you have described, her green card would appear to be
invalid for entry. The green card has a maximum time of one year for a resident to return. If your mother is pleading special circumstances because of your older sister, she would have to answer the question of why she did not take steps to reenter the U.S. previously since your sister passed away a couple of years ago.

2 If she is denied entry, your mother can ask to have her case adjudicated by an immigration court. In such event, she will likely be allowed into the U.S., although the Department of Homeland Security would most likely take away her green card and passport. On the other hand, if she surrenders her right to permanent residence at the airport, the immigration inspector can either have her put on the next flight to China at government expense or allow her entry as a visitor for a short period of time.

I suggest that if you are a U.S. citizen and can re-petition for your mother, that would perhaps be a better route. She would then be consular processed for a new green card after the petition is approved by Immigration and forwarded to the American consulate in Guangzhou for interview.

Q&A 3.

Mother Has Left the U.S. Almost Two Years and Plans to Return Now. Will She Have a Problem Keeping Her Green Card?

Yan reader asks:

My mother is a green card holder. She left U.S. in Aug. 2007. Due to illness, she stayed in China until now. She is planning to come back U.S. before Aug. 2009. Do you think she will have problem coming back? What will happen to her green card? She did get advance parole before she left US.

Dear reader:

I assume that you mean that your mother applied for a reentry permit and not advance parole before leaving the U.S. An advance parole is requested by applicants who have not yet obtained permanent residence; a reentry permit is the appropriate document for a permanent resident. Permanent residents are not eligible for advance parole. A reentry permit holder is allowed a maximum of up to but not including two years to return to the U.S. after an extended trip abroad. If your mother is still within the two-year limit, she can board the plane and return. I suggest that she bring with her any medical records which can substantiate her illness. In the event that she is challenged by the Department of Homeland Security inspector at the airport, she is entitled to request a hearing from an immigration court to have her right to continued residence adjudicated.

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.