World Journal Weekly Q & A - November 1, 2009

Q & A 1. 2. 3. 4. 5. 6.


Q&A 1.

Reader Asking About Leaving the Country for a Long Time; Giving Up the Green Card; Later Being Sponsored by Her Daughter; and Her Daughter Sponsoring Her Son Also.

Linda reader asks:

I am a new immigrant from China.  Five years ago, I married a U.S. citizen from Taiwan and we gave birth to our son in Taiwan in the third year of our marriage.  At that time, we applied our son as a U.S. citizen in AIT, but it was denied.  Last year, my daughter from my prior marriage and I received our immigrant visa and came to the U.S.. Later we both received 10-year green cards.  Now, I plan divorcing my current husband due to incompatible characters.  My questions are: I have my green card for one and half year now, if I leave U.S. for over half year or a year, will the U.S. still allow me to come back in?  What problems will I face?  My daughter is 17 and goes to school here, if I give up my current green card, can my daughter later on apply green card for me?  In what age can my daughter apply for me?  And how long will it take? Do I need an affidavit of support? Also, my three years old son has been living in China being cared for by my 70+ years old parents, he doesn’t have any visa to enter the U.S..  If I divorce my current husband, when my daughter applies for me, can she apply her half-brother at the same time?  What are the requirements and how long will it take?

Dear reader:

1   If you must leave the U.S. for over one year, you should apply for a reentry permit which allows travel up to but not including two years outside the country.  It is not a guarantee of reentry, but does give a basis for returning after a lengthy stay, and improves the chances of uneventful reentry. 

2   If there is a problem with reentry, you would be asked to surrender your residence card or explain your case to an immigration judge.  If you are in a hearing before the immigration court, the focus will be upon whether you have abandoned residence. 

3   If you give up your current permanent residence card, your daughter can apply for you when she reaches the age of 21.  A typical case would take approximately one to one-and-a-half years.  To immigrate, your daughter would have to provide an affidavit of support.  If she does not have sufficient support, a joint sponsor could take up the financial burden with another I-864 affidavit of support form. 

4   On your three year-old son, I will assume for purposes of this question that the AIT decision is correct.  When your daughter becomes a U.S. citizen, she can apply for her half brother.  She will be required to produce proof of U.S. citizenship and that you are the mother of both children.  If born in China, your daughter can provide her notarial birth certificate.  As your son is born in Taiwan, he can produce his household registration in Taiwan.  Currently the processing time is over 10 years in the F-4 category, the one in which she would be applying for your son. 

Q&A 2.

Reader Does Not Wish to Swear Oath of Allegiance or Salute the Flag During Naturalization Process for Religious Reasons - Is It OK?

Huang reader asks:

Can I not swear the oath and salute to the national flag when I am naturalized?

Due to religious reason, I can’t salute to any national flags or participate any swear in ceremonies.  Can I request for a waiver of the above two items on my application form or to the interview examiner?

Dear reader:

You can take a modified both of allegiance instead of the full oath, but you cannot become a citizen without an oath of allegiance.  If you believe that you qualify for a modified oath, you should request such modification with your application form.  You can take the oath without the words "To bear arms on behalf of the United States when required by law" if you provide enough evidence that you are opposed to fighting on behalf of the United States because of your religious training and beliefs.  You may also omit the words "To perform non-combatant service in the armed forces of the United States when required by law."  Also if you are unable to swear the oath using the words" on oath," you may replace those words with "and solemnly affirm."  Finally if you are unable to use the words "So help me God" because of your religious training or beliefs, you may omit those words.  U.S.C.I.S. may of course ask you to provide a document from your religious organization explaining its beliefs and stating that you are a member in good standing.  Saluting the flag does not appear to be a requirement for naturalization although one may question whether you have the requisite attachment to the Constitution and to this country without respecting its flag.

Q&A 3.

Is There Any Way for Immigration Officials to Know How Long I Left the U.S. When I Re-enter With My Green Card?

Chen reader asks:

I have green card for many years.  Because of employment, I mostly reside overseas and do not live in the U.S..   Every half year I must come back to the U.S. and I am fed up with the trouble.  On thing I do not understand is that normally when I leave the U.S. airport, I do not need to be stamped by the immigration officers, which means there is no record of me leaving the country.  Is it fair to say that when I reenter, the immigration officer would have no idea how long I had left the U.S.?

Dear reader:

Customs and Border Protection (CBP), the part of the Department of Homeland Security on the borders and ports of entry to the country, does not tell us exactly what databases they draw from for information concerning persons travelling in and out of the United States.  I also note that most countries stamp entry and exit dates on individuals' passports.  Therefore I cannot tell you that immigration officers would have no idea of how long you have left the United States.

Q&A 4.

How Can I Move My Case From a Recommended Asylum Approval to a Final Asylum Approval Since It Has Already Been Almost Five Years?

Lisa reader asks:

I applied for political asylum base on “one child policy” and passed the interview in 12/2004 in San Francisco, CA.  I received a “recommended approval”.  In 2005, I moved to New York and had informed immigration the New York address in time.  It has been 4 years since I received the recommended approval, and as of today I have not received the final approval and have not heard any news.  In March 2008, I wrote an inquiry to San Francisco’s immigration, and they responded stating my case was still pending.  Later I wrote more inquiry, but did not receive any response.  My questions are:

  1. Is my situation normal?
  2. How long does it take from the recommended approval to the final approval of one child policy case?
  3. I want to know the progress of my case, how long do I have to wait to receive my final approval?
  4. I want to receive my final approval as soon as possible.  What should I do and how to trace?

Dear reader:

1   It is not normal that a recommended approval will take almost five years and not be resolved into a denial or final approval. 

2   Cases with recommended approvals are usually resolved within a short period of time when the background clearances are completed.  At the time of your recommended approval in 2004, U.S.C.I.S. was only issuing conditional approvals for coercive population control cases once the background checks cleared.  All approvals since May 11, 2005, the date of the Real ID Act, following a recommended approval are final.  

3   I would suggest that you check your case more diligently by yourself, your local Congressman or Senator, or an attorney's office.  You have been less than diligent if your last inquiry was over 1 1/2 years ago. 

4   See answer 3.  I note that if you wish to take individual action by yourself, you can set up an Infopass with U.S.C.I.S. at the local office through accessing the web site at uscis@dhs.gov; you can write letters to the asylum office holding your case; and you can speak with the National Customer Service Center of U.S.C.I.S. at 1-800-375-5283. , etc.

Q&A 5.

On the Affidavit As Support, Will Anyone Know That the Petitioner, My Sister, Has Filed for Bankruptcy? Can I Be a Co-sponsor?

Chen Reader:

My U.S. citizen sister applied for my younger brother’s family of three and an older brother (he is divorced and single) in October 2000, under F4 category.  Based on the current processing time, there is 2 years and seven months left.  However my sister in the recent years experienced financial difficulties and she owes a lot credit card debts.  After consideration, she is preparing to file bankruptcy.

My questions are:

  1. Will the immigration know about her bankruptcy filing and deny my brothers’ visa when their priority dates become current?
  2. Currently my sister and brother-in-law filed tax returns on time every year for about 40,000 for their family of four (including 2 children).  When time comes, I can be the co-sponsor.  How much income is needed in order to successfully sponsor four of them to immigrate?

Dear reader:

1   I do not believe that anyone will know about your sister's bankruptcy filing as that is not covered in any of the applicable forms.

2   As your sister and brother-in-law already have a family of four and will be providing support for four others, they should have sufficient income and assets for eight persons if they have not already sponsored other individuals for whom they remain liable.  For states other than Alaska and Hawaii, they must be able to show the support level of $46,262.50 in 2009.  (Assets are counted at one-fifth value).  For you to co-sponsor the four individuals, you will have to determine the number of individuals who rely upon you as dependents in addition to the four who are overseas and refer to the 2009 poverty guidelines.  If you are single with no dependents and never sponsored anyone before and are living in states other than Alaska or Hawaii, the level of income and assets that you would have to show would be $32,237.50; if obligated for two persons in addition to the four overseas, $36,912.50; three $41,587.50; four $46,262.50; and for each additional individual another $4,675.

Q&A 6.

How Can I File for a Replacement Green Card Since Mine Eexpires in 2009? What's the Procedure?

Kathy reader asks:

My 10 year green card will be expired soon.  My questions are:

  1. When should I file for extension?
  2. How to file, including where, what form, what documents, fee, etc.?  What issues should I be aware of so that my application will not have problems or be denied?
  3. How long will I receive my new green card after filing? 
  4. Will I need to be interviewed?
  5. Please describe the whole process and procedure.

Dear reader:

1   You can file for a replacement green card six months prior to expiration. 

2   You would file Form I-90 at the U.S.C.I.S. lockbox address in Phoenix at:

U.S.C.I.S.
P.O. Box 21262
Phoenix, Ariz. 85036
(regular mail or through the post office)  OR

U.S.C.I.S.
Attention: I-90
1820 Sky Harbor, Circle S Floor 1
Phoenix, Ariz. 85034 (courier deliveries). 

3   The fee is $370 made out to "Department of Homeland Security".  You should send a copy of your expiring card.  An I-90 submitted for purposes of replacing an expiring green card is not a re-adjudication of your entire case, although U.S.C.I.S. will conduct background clearances to determine whether you have committed offenses that might bar you from the U.S.

4   In our experience, most applicants are receiving replacement green cards within 2-3 months of filing.

5   You will only need to be interviewed if U.S.C.I.S. has unresolved questions concerning your case. 

6   In general, the application is filed, individuals must attend the biometrics appointment, and if there are no problems, U.S.C.I.S. will send out an approval sheet followed by a new permanent residence card shortly thereafter. 

 

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.