World Journal Weekly Q & A - April 18, 2010

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


Q&A 1.

Brother's green card was taken away at the airport for not staying long enough in the U.S. What are his options now?

Deng reader asks:

My brother’s family of three immigrated here in 2006 under F4 category and received their green cards.  His wife and daughter have been staying in the U.S. working and studying.   However, my brother only stayed in the U.S. about 1 to 2 months each year.  The first two years, he had reentry permits.  But last year in May, he did not have enough time, so he did not apply one and left.  When he came back in January, his green card was taken away by the U.S. customs officer and the reason was that the green card was for a permanent resident, not for a traveler.

If my brother wants to reside in the U.S. permanently few years later, should he then file papers to retrieve his old green card?  Or his family member must re-file immigrant papers for him again to obtain a new green card?

Dear reader:

After your brother's green card was taken away, did he leave or did he say that he wanted the immigration judge to make the decision?  If he left and gave up his green card, he would have to start all over again.  That would involve the petition process, presumably by his wife or a daughter (after age 21) when and if they become U.S. citizens.  I do note that a possible concern could arise in their petitioning if your brother was the principal alien as the small amount of time that he spent in the U.S. each year could raise questions as to whether he ever intended to permanently reside in the States when he obtained his green card.  On the other hand, favorable factors are that he applied for reentry permits and that his family members have been staying here working and studying.  If your brother chose to remain and seek to retain his residence status before an immigration court, those factors along with showing other ties and bonds with the United States, eg. payment of U.S. taxes, ownership of real property, keeping of memberships and associations in the U.S., U.S. bank accounts, driver's licenses, etc., would be relevant in an immigration judge's decision of whether to allow him to retain his permanent residence. 

Q&A 2.

Reader wants to know the rules of naturalization after having just received permanent residence.

Tang reader asks:

I am a green card holder and have settled down in the U.S. for two months.  I want to apply for naturalization.  My questions are:
1. How long do I have to live in the U.S. before applying for naturalization?
2. How long do I have to wait after filing naturalization application?
3. During the waiting period, I want to leave U.S. to attend my son’s wedding for one month.  Will it affect my naturalization application?

Dear reader:

1.  Assuming that you obtained your permanent residence through means other than marriage, you would wait five years from the date on your green card.  You can file the N-400 application for naturalization 90 days prior to the five years.  If you obtained a green card through marriage to the U.S. citizen, you are eligible to file in the 90 day period prior to the third anniversary of the date on your green card as long as you have been married three years, your spouse has been a U.S. citizen for three years, and you have lived together constantly for that period of time.  U.S. law also requires in all cases that you be physically present in the U.S. for of least half of the required period of residence.  I do note that trips outside the United States for one year or more invalidate the residence period even if the holder has a reentry permit, and that trips of six months or more but less than a year invoke a rebuttable presumption of having broken the residence period for naturalization. 

2.  According to U.S.C.I.S.'s website, naturalization applications nationwide are taking less than six months to schedule for interviews.

3.  A one month absence will not affect your naturalization application.

Q&A 3.

Reader is agonizing over whether to put down on naturalization application his incident of arrest by private security at a store which concluded with admonishment.

Tan reader asks:
 
I shoplifted at century 21 six months ago and I was age 17. I have submitted my N-400. Now I believed I made a mistake on question 15 under good moral character (I put No instead of Yes). Police was not involved, I was not charged, I was not convicted, There was no court summon. The store security gaurd stop me and took me to the their office. They asked me for my information. I also signed a agreement that I am not able to return to the store for 7 years. After that, they dismissed me from the store. This matter was only between me and the store.
 
1. Now, Do you think it's a good idea to write a letter to USCIS stating that I made a mistake on number 15 after speaking to an attorney?

2. If so, do you think I will be deported?
 
3. will they revoked my green card?
 
4. will they reject my application?

5. If they reject my application, will they put me in jail or make me go to court since police was not involve?

Dear reader:

As the police were not involved, an arrest by private security is not considered an arrest for purposes of a naturalization application.  You said you believe that you made a mistake on question 15 under good moral character putting down "no" instead of "yes".  That question asks whether you have ever committed a crime or offense for which you were not arrested.  The choice of whether to correct the information now or at the interview or to let your present answer stand may depend upon whether you really consider yourself to have committed a crime.  Did you really hide the item within a pocket or on your person with no intention of paying for it, or did you just want to try it on and put it back before leaving the store? Did you go outside the store before being stopped by security? If in the store, were you on the way to pay for the item or put it back? Did you have full intent to steal or did you in an absent minded frame of mind put the item in your pocket? These are questions you may wish to ask yourself before admitting to a crime for which there appears to be no record.  If you do notify U.S.C.I.S. that you committed a crime of shoplifting, such by itself would not be grounds for removal or revocation of your green card.  However, U.S.C.I.S. may reject your naturalization application as that requires a finding of good moral character.  Being 17 is not an excuse for stealing unless the act reflects the community standard or moral that most children of that age commit an act of theft.  If your naturalization application is rejected on that ground, you would not go to jail or court as the U.S.C.I.S. is an immigration and not criminal prosecutorial agency and the case would need a complainant, the store.  In your case, the store would decline to prosecute.

Q&A 4.

Procedure for Filing a Sibling I-130 Petition

A sister asks:

I am a USA citizen.  I am going to apply green cards for my brother and sister.
I have I-130s ready, My questions are:

  • When I mail the I-130s, do I need to mail a $355.00 check per person at same time?
  • Do I need to mail in other documents?
  • After I mailed I-130s and checks, do I suppose to get response from USCIS?

Dear reader:

U.S.C.I.S. does not accept I-130 petitions without payment of $355.  The I-130 in the sibling case should be accompanied by proof of your U.S. citizenship and birth of both you and your sibling.  Following your sending of the I-130 petitions, U.S.C.I.S. will receive the fees and send you a receipt within approximately two-three weeks.

Q&A 5.

Must Reader File For Replacement Green Card Which Is Now Expired Since She Is Ready to Apply for Naturalization?

Connie reader asks:

My green card expired for more than a year and I am planning to apply for citizenship.  I am wondering whether I have to renew my green card first before I apply for citizenship or I can just apply for citizenship with an expired green card?

Dear reader:

U.S.C.I.S. wishes you to renew your green card prior to applying for naturalization.  The law requires you to keep your green card valid.  The agency provides an exception where your green card expires six months or more after you file your naturalization application.  However, even then, some immigration officials believe that if the naturalization process takes longer than six months and the card expires over six months after the application is filed, the permanent resident should nevertheless file for a new card.

 

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.