World Journal Weekly Q & A - January 3, 2010How to File for Adjustment of Status for An AsyleeMei reader asks: My whole family’s political asylum case was granted last year during Immigration interview and we received A5 cards. I was told I could file for the green card application 2 months before the 1 year political asylum granting anniversary. I heard I should submit the I-485 form along with physical examination report and filing fee. Is it true? Could you tell me the proper procedure? Dear reader: An asylee must wait the entire year before filing for adjustment of status based on political asylum. The I-485 application must be filed with medical examination and filing fee. You should also include proof of your political asylum status, proof of birth, marriage, and although not strictly necessary employment and the filing of taxes. If you have committed crimes, you must provide arrest and disposition records. You can also attach a copy of identification such as passport, driver's license or state identity card. I do note that there may be a question concerning the bonafide character of an asylum application where the principal asylee obtains a new or extends an old passport of the country of persecution. B-2 Visas for Parents and What a Consular Officer Looks AtAnna reader asks: I am a green card holder. I want my parents to come to U.S. to visit me. I do not have a job now, but in 2008, my joint income tax return filed with my husband and one daughter was 29,000.00. My parents have 3 real estates and I have two in China. Is it enough? Can I apply for them or they must apply themselves in China? Can they sponsor themselves using their own real estates and bank accounts? How much should they put in the bank? Dear reader: Your parents will be applying for visitor visas which are given in the discretion of consular officers. Officers look to see whether applicants have an immigrant intent and whether they are capable of being supported in their visit to the States without working. It would seem as if the financial situation that you describe for yourself and your parents is sufficient for visa issuance, but that is largely up to the individual officer looking at your parents' cases. Your parents must apply themselves in China although you can provide evidence of financial support for them. Whether they can sponsor themselves using their own estates and bank accounts is again a question for the consular officer to determine, but more is always better. You have asked how much they should put in the bank for themselves, but I warn you that consular officers usually wish to see more than a few months of banking statements just to assure themselves that applicants are not just "loading" up their accounts to look better for a consular interview.Derivative Son Should Qualify for Section 245(i) Through Aunt's Petition for His MotherSu reader asks: My family came to U.S. in 1997 under visiting visa and never left. In 10/2004, my husband, daughter and I received green cards through my sister’s application for me but my eldest son was aged out. So I filed paper for him in 10/2004. Now I am a U.S. citizen and my son’s priority date should be current soon. My questions are:
Dear reader: 1 Your son should be able to qualify under Section 245(i) since your sister's application included him. Your son was a derivative and as such is entitled to Section 245(i) protection as your sister's application was completed in 2004 and Section 245(i) was available by 1994. The section was enacted to allow most illegal aliens to adjust status in the U.S. to permanent residence instead of consular processing their cases if they had a legal basis for permanent residence. Most individuals who had immigrant visa petitions or labor certification applications filed by the January 14, 1998, are eligible as are those who did the same between January 15, 1998-April 30, 2001. For those in the latter group, a requirement was added that they had to be physically present in the U.S. on December 21, 2000. 2 U.S.C.I.S. has flip-flopped on the issue whether an individual can file for Section 245 (i) benefits more than once, but the latest position is that individuals can pay as many times as they are eligible for the benefits. 3 U.S.C.I.S. would most likely to oppose Section 245(i) eligibility if the only proof was an acknowledgement letter from the Department of Labor in March 2001. If there is more proof of labor certification filing such as a copy of the application and further correspondence between the Department of Labor and employer or attorney, such would be more persuasive to U.S.C.I.S. 4 It would appear that the more persuasive entitlement to Section 245(i) benefits is through your sister's previous application, and a legal argument could be made as to how and why your son is eligible for Section 245(i) benefits. An experienced immigration lawyer could make the argument effectively. The form to fill out to request the benefit is Form I-485A. 5 If your son leaves the United States and is barred for 10 years because of his illegal presence for one year or more, he can file a waiver of the bar if able to prove that his departure would cause extreme hardship to you. In adjudicating such a waiver request, U.S.C.I.S. will look at the family members that you have inside the United States who are U.S. citizens or permanent residents, your family ties outside the U.S., conditions in the country to which you would relocate and the extent of your ties to the country, the financial impact of your departure from the U.S., significant conditions of health, particularly when tied to unavailability of suitable medical care in the country to which you would relocate, and any other factors which would be important in showing hardship to you.
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Copyright © 2003-2012 Alan Lee,
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