World Journal Weekly Q & A - November 14, 2010

Q & A 1. 2. 3. 4.


Q&A 1.

Can I Qualify as a Special Case for Immigration Since I Heard that the Obama Administration is Giving Special Treatment for Certain Sympathetic Cases?

A L-1 Manager asks:

I came to the United States under L-1 as an intracompany manager in 2004.  I then applied for an I-140 petition under the EB-1C category and also applied for an extension of my L-1 status as I had only been given one year.  My L-1 extension was denied in September 2005, but the I-140 petition for a green card was approved in July 2006.  In the meantime, the company appealed the L-1 denial, but the appeal was turned down in 2007.  As a result, I was illegal and not allowed to adjust status to permanent residence.  Neither my wife nor my children (my oldest son is now 18 and wants to go to college) have Social Security numbers, and find it difficult to work or to get into a good school without them.  I heard that the Obama administration is helping out certain groups of people in the sympathetic circumstances.  If I put in an application to adjust my status and that of my family to permanent residence, can I be considered a special case for sympathetic consideration? I pay my taxes on time, am active in my community and church, and am with the same company which sponsored me for the L-1. 

Dear reader:

I do not suggest that you put forth an application for adjustment of status to permanent residence at this time.  Although the Republican Party has been hammering away at Mr. Obama as trying to legalize certain groups illegally, that is not true.  We have only heard that the administration is employing a familiar tool, prosecutorial discretion, to prioritize its enforcement concerns, especially targeting criminal aliens, and to reduce its expenditure of resources in other situations such as to avoid placing illegal students under deportation proceedings, or not vigorously opposing their efforts to gain merited relief in those proceedings.  We have also heard that similar treatment is being afforded to the dependents of U.S. servicemen.  I do not believe that any such consideration would be given to your situation, and you would likely be better served waiting for future legislative developments. 

Q&A 2.

Why Labor Certification substituted Alien not Allowed to Adjust Status Under Section 245(i)

A B-2 visitor asks:

I came to the United States on a B-2 visitor’s visa which expired in 1999.  I did nothing to try and get a green card until the owner of the Chinese restaurant that I was working in told me that it had sponsored a cook for labor certification in March 2000 and that the next step, the I-140 petition, had also been approved in 2003, but that the cook had quit, and that I could use the approval to get my own green card.  The restaurant lawyer then applied and got for me my own I-140 approval in 2006 that showed a beginning date in March 2000.  However, when I tried to apply for my adjustment of status using 245(i), I was rejected by U.S.C.I.S..  I do not understand why since I was allowed to be substituted
into the other cook's case, and that made me eligible for Section 245(i) adjustment of status according to my lawyer.  He also said that the cutoff date for putting in the labor certification application for me to get 245(i) was April 30, 2001.  Is he right?

Dear reader:

Labor certification substitution was recognized as a method by which organizations would not have to go through the labor certification process again to fill a needed position if the original beneficiary could not or chose not to immigrate to the States.  The substitution process was finally outlawed by the Department of Labor on July 16, 2007.  Labor certification substitutions done prior to that date remain valid.  Therefore your I-140 petition approval with priority date in the year 2000 is still available to you.  Unfortunately U.S.C.I.S. took the position by regulation that the substitution did not include giving the alien who was substituting the ability to also adjust status under Section 245(i).  8 CFR Section 245.10 (j) states explicitly that "only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under Section 245(i) of the Act."  The regulation also provides that in that situation, neither the substituted nor the substituting alien have a right to Section 245(i) benefits through that labor certification. Your lawyer unfortunately appears not to have taken the regulation into account.  You can of course consular process your case at an American consulate in your home country, but the difficulty in most cases is that applicants are barred for 10 years from returning to the States under a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which gives such penalties for most aliens who have overstayed their authorized period by one year after April 1, 1997. 


Q&A 3.

National Visa Center is Sending Immigration Paperwork to Applicant Far in Advance of the Priority Date Being Available - Why? How to Get Co-sponsors for 11 Applicants?

A CA reader asks:

1). I became US citizen in 2003 and immediately applied for my children in China to come to US.  In April 2010, I received immigration’s approval notice.  Should their applications take 7-8 years to be approved?  When are my children’s priority dates?

2). On that approval notice, it stated my children should receive paper within 90 days and if we did not receive papers we should phone (630) 334-0700.  However, the current priority date is only up to 9/1/2001 (F3).  How long do we have to wait?

3. My wife and I are getting old.  We have worked over 10 years, received over 40 points, about to retire and moving into a nursing home.  Will that effect the applications?

4. We are a low income family. Our annual income was less than $20,000.   I have lost my job and receive unemployed benefit.  My wife makes $6,000 a year.  Will that affect my sponsorship?  What is the minimum income my friend must make to sponsor?  I have three children in China, with a total of 11 people.  How many sponsors do I need to have? If we can collect cash and loans, how much do we need to solve the problem?

Dear reader:

Currently there is rapid movement in the family based categories as many applicants who filed long ago either have already immigrated through other means, do not qualify anymore, or have lost interest in immigrating to the United States.  That is the reason for which the National Visa Center is currently sending out paperwork to applicants so far in advance of the dates becoming available and requesting the fees for consular processing.  Currently the F-3 category under the visa bulletin for August 2010 shows availability for those who filed I-130 petitions before January 1, 2002.  It is difficult to predict visa movement but I note that in the 12 month period from August 2009-August 2010, the F-3 category has moved 14 months forward.  The priority date is counted from the filing date, which is when you sent the I-130 petitions to U.S.C.I.S.. 

To immigrate, your daughters will require an affidavit of support from you.  If you retire and move to a retirement home, such a move would not affect the ability of your daughters to immigrate as you will require a co-sponsor anyway.  You state that your total income is less than $20,000 a year; that you lost your job; and that your wife makes $6,000 a year.  With 11 people to sponsor, you are allowed six separate co-sponsors, two for each family.  The co-sponsors must figure out the size of their own household and add that to the number of persons to be sponsored in order to arrive at the amount of income required for the sponsorship.  Assets such as cash and property can be credited at 1/5 of their value.  The current poverty guidelines are attached below for your information:

2009 Poverty Guidelines

Size of Family

Poverty Guidelines

125% of Poverty Guidelines

     1

 $10,830

  $13,537.50

     2

 $14,570

  $18,212.50

     3

 $18,310

  $22,887.50

     4

 $22,050

  $27,562.50

     5

 $25,790

  $32,237.50

     6

 $29,530

  $36,912.50

     7

 $33,270

  $41,587.50

     8

 $37,010

  $46,262.50

For each addition person, add

 $  3,740

  $  4,675.00

 












Q&A 4.

Reader's Case May be Caught in the Jurisdictional Divide Between U.S.C.I.S. and the Immigration Court.

A reader asks,

In 2000, I was caught by Immigration, but cooperated against the smugglers, and was released on low bond on recommendation of Immigration to the immigration judge a few months later.  I married my wife, a U.S. citizen, in March 2001, and she immediately filed papers for my immigration with the Immigration Service.  Immigration lost my file for a number of years, but we finally had a green card interview in June 2009.  Since then, my lawyer has not been able to get me any results other than a letter from Immigration in March 2010 that U.S.C.I.S. reopened the I-130 and the I-485 applications.  My lawyer says I still have to wait.  How long do I have to wait? It has already been over nine years. 

Dear reader:

Although your letter is not very clear, it would appear that even though you were released from the detention facility by order of the immigration judge, your case was not concluded in the immigration court.  In such situation, your case is still within the jurisdiction of the immigration judge, who can decide to either hear your case, terminate your case, or remand your case to the Immigration Service.  If U.S.C.I.S. is taking too long to take the appropriate action, your attorney can move to re-calendar your case before the court.  The amount of time that it would take for your case to come up before a judge would then depend upon the judge's schedule.

 

Copyright © 2003-2010 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.