World Journal Weekly Q & A - February 14, 2010Reader Entered Without Inspection in 2005, Has U.S. Citizen Husband and 2 U.S. Citizen Children, and Wishes to Know How to Adjust Status to Permanent Residence Without Leaving States.Tiffany reader asks: I sneaked into U.S. in 2005 and have no entry record. I have two U.S. born children and my husband now is a U.S. citizen. How can I adjust status? Dear reader: Unless you are the beneficiary of Section 245(i) which allows persons who sneaked into the country to interview here and is available for those who filed immigrant visa petitions or labor certification applications by April 30, 2001, you have no basis to adjust status to permanent residence. Even if papers were filed, you would still have had to be physically present in the U.S. on December 21, 2000, to qualify. I note that there is an earlier version of Section 245(i) which does not require physical presence, but in which the labor certification application or immigrant visa petition must have been filed by January 14, 1998. In looking to see whether you qualify, you can take into account immigration papers that may have been filed by either of your parents when you were under the age of 21 as long as the category allows dependents, e.g.-the F-4 category under which a brother or sister may have petitioned for either of your parents when you were under 21 qualifies while an immediate relative category such as your U.S. citizen brother or sister applying for your parents would not as there are no dependents allowed under the category. Unless you have entitlement to Section 245(i) benefits, you appear to have limited choices of either waiting for a change of law, interviewing overseas at a U.S. consular post and attempting a waiver of the 10 year bar for illegal stay, or waiting here 10 years after entry to attempt a cancellation of removal (10 year green card case) before an immigration court in which the burden would be on you to prove that your removal would cause exceptional and extremely unusual hardship to your U.S. citizen or permanent resident parent, spouse, or child.
Reader Petitioned for Parents' Permanent Residence and Wants to Know If He Can Act As Their Interpreter at the Time of the Interview at Local U.S.C.I.S. Office.An Illinois reader asks: I applied green card application for my parents about 3 months ago and now my parents are asked to go for an initial interview. Can I be the interpreter for them? Dear reader: The regulations generally state that an applicant unable to proceed with the interview in English must provide at no expense to the Service a competent interpreter fluent in both English and a language in which the applicant is fluent; that the interpreter be at least 18 years of age; cannot be the applicant's attorney or representative of record; a witness testifying on the applicant's behalf; or if the applicant also has an asylum application pending with the Service, a representative or employee of the applicant's country of nationality, or, if stateless, country of last habitual residence. Additionally, you should be aware that many immigration officers believe that the regulations are only a starting point, and that others should also not serve as interpreters. In one case recently involving a marriage case in which the petition was ultimately approved, an immigration office requested our client to bring two separate interpreters to the interview who were not relatives or household members. In your case, it would appear that you definitely would be disqualified under the regulations as being the petitioner and having to be also a witness in the case. Although we have seen immigration officers allow petitioners and even attorneys to translate, there is a very good possibility that you would not be allowed to do so, and we would strongly suggest that you bring along an unrelated party as interpreter if your parents require translation. (I do note that some Service offices provide translators and so you should check with the local office as to its policy.) Reader With Deportation Order Wonders If Obtaining Status in Canada Will Allow Him or Her to Come Back to the U.S. - and If Still Barred, For How Long.Chen reader asks: I have a deportation order against me. If I obtain a Canadian status, can I come to U.S.? Am I still be barred for coming to the U.S. and how many years will I be barred? Dear reader: An individual with a deportation order is not absolved of such when he/she receives status from Canada. Generally speaking, persons with exclusion orders were barred from returning for one year and those with deportation orders were barred for five. With the advent of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, removal proceedings replaced both and those have barred former excludees for 5 years and deportees for 10 years regardless of the dates that they left the U.S. You may be able to obtain temporary permission to re-enter or for advance permission to re-enter the States permanently if the Department of Homeland Security consents to your reentry. I also note that if there are other disabilities such as crimes or fraud, you would most likely require waivers of such in order to re-enter the States. With Final Order of Deportation and Sympathetic Factors, Reader Wonders if She Can Cancel Her Deportation Order by Writing to the Board of Immigration Appeals With Her Evidence.Lin reader asks: I came to U.S. 15 years ago. I went to Court for political asylum based on homosexuality in 1997 but lost and had a voluntary departure order. Later I got married in U.S. and now have two children. I tried to reopen my case in 2003 but lost and also lost in Federal Court. Now my two children are sick and must stay in the U.S. for treatment. I filed income taxes for 10 years, have a house and business. I have doctor's certificates and letter form doctor, school principal, church, 10 policemen and friends begging for leniency. My questions are: 1. If I mail these leniency letters to the Board of Appeals, will I be successful in cancelling my deportation order? Dear reader: 1. Leniency letters to the Board of Immigration Appeals would have no effect in cancelling your deportation order. 2. Whether anybody at the Board of Immigration Appeals reviews your claims of hardship would have no bearing upon a reopening of your case. You have not stated a case for any possible relief that can be afforded by the Board under the immigration laws. There is a possibility that you may be able to convince a member of Congress to sponsor a private bill on your behalf, but most of those attempts are unsuccessful, especially as congressmen and senators are very wary of the possibility of unfavorable publicity in introducing a bill. There is a further possibility that you may be able to approach DHS and request the relief of deferred action, which means that the agency would allow you to remain temporarily in the country without deporting you and it could give you employment authorization in the interim. I do note that the present Administration is behind Comprehensive Immigration Reform which if passed would likely cover your situation and ultimately afford you permanent residence. Guangzhou Sending Marriage Case Back to U.S.C.I.S. and Reader Wonders What Are the Best Steps to Take at This Time.Chang reader asks: I am an U.S. Citizen. In 2008, I applied my husband (in China) with the form of I-130. His first interview was in September 2009, but he was not approved, and was asked for additional evidences including letters, telephone bills, pictures, a written letter of how we meet each other ...to the consulate in Guangzhou. About a month later (October 2009), he received a letter saying that the case was denied and they will going to send the case back to the U.S.C.I.S. and after they had send it back, they will send him a letter to let him know. What is the next thing that I can do? Can I re-apply I-130 or I-129F for him now, since the case haven't send back to the U.S.? Also if I want to appeal, can it be done at the same time of re-filing? What would the percentage of the Board changing their decision if I appealed? Dear reader: Unfortunately it appears that the consular post in Guangzhou has a mind set that most marriage cases involving aliens are false. Many marriage refusal situations in Guangzhou that we see from people consulting us have nonsensical refusal reasons. One in particular comes to mind of a Guangzhou consul memo provided by U.S.C.I.S. using as a fraud factor that the alien in China had married a Chinese person who came from New York to China to marry her. We took on the situation and successfully pointed out to U.S.C.I.S. that such was not a suspicious circumstance -- that a suspicious circumstance would have been a Puerto Rican from New York going to China to marry a Chinese national. In these situations where there is a consular refusal, there are no easy alternatives. The filing of new I-129F or I-130 petitions may even result in Guangzhou refusing to interview or merely asking what was new since the last refusal. Waiting for a refused case to be sent back to the States and to be worked upon by U.S.C.I.S. took over 2 + years as recently as last year although the agency now says that it expects to work off these cases within a year of receipt from here on. U.S.C.I.S. offices have become aware of the irrationality of many Guangzhou decisions, and have reaffirmed a number of prior I-130 approvals. The difficulty is that the cases are then sent back to Guangzhou which then again interviews the applicants and many times denies them again. So there is unfortunately no quick and easy route to overcoming such a denial. Under the immigration laws, consular officers cannot be sued for their decisions, regardless of how irrational they may be. If they were capable of being sued, consular officers would render decisions that are much more reasonable and in accordance with the law.
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