World Journal Weekly Q & A - November 21, 2010

Q & A 1. 2. 3.

Q&A 1.

Reader Has Political Asylum from 2003, yet Has Aadjustment of Status Application Still Pending Even After Going to Court at Request of FBI in 2005  - What To Do?

Tony reader asks:

I came to U.S. in 2001 under business visa.  I filed political asylum and won in 2003.  Later, my applications for my wife and daughter were approved and they immigrated to U.S.  One year later, my daughter received her green card.  However, as of today, my wife and I have not received our green cards.  I checked with CIS many times and was told that our cases were still pending.

In 2005, I went to Court as a request of FBI, and the judge told me that I would be a “tainted witness”, if they could catch the snakehead who arranged for my entry to the U.S..  I was told that snakehead arranged many people sneaked into the U.S..

Will this the reason for which I have not received my green card?  If so, why my wife does not have green card either?  If they have not caught the snakehead, when can my green card be approved?

Dear reader:

There is a good chance that your problem with the snakehead and the involvement of the FBI have delayed the adjustment of status for both you and your wife.  As your adjustment of status application has been pending for many years, you might consider contacting with an attorney who would bring suit against the U.S.C.I.S. for the long delays in the adjustment process for you and your wife.  Of course, an action to compel the agency to adjudicate your matter does not guarantee that your case will be approved.  If there are items in your background which are unfavorable, e.g., crimes, any action to speed up your case could wind up expediting a denial. 

Q&A 2.

Petitioner for Brother and His Family Has No Job, Only Rental and Interest Income, and Asks If It Can Count as Wages Income and If It Is Enough for Financial Sponsorship.

Jennie reader asks:

I am a U.S. citizen, filed immigrant visa for my brother’s family of 3.  Per current processing time, his priority date will be current in April of 2011.

I am 62 years old, single and own a 3-story building in the city with mortgage paid off.  The 1st is a store, 2nd and 3rd are for residential purpose.  I am planning to let my brother stay in one of the residential floor, rent free.

I have no job, only rental and interest incomes.  My recent 3 years net incomes after tax were 32,000, 35,000 and 35,000.  My savings are invested in either money market or short term C.D.s.  Am I qualified to financial sponsor my brother’s family of 3?  The poverty guideline for 4 people is $27,562.  Can my rental and interest incomes count as wage income?

Dear reader:

The fact that you are able to show three years income after taxes of $32,000, $35,000 and $35,000 should be favorable to demonstrating that you are able to support your brother's family of 3.  Rental and interest income count as your income for purposes of support.  In addition, any assets that you have like your 3 storey building can be counted at one-fifth of value in determining the amount of support (e.g., if the building is worth $250,000 free and clear of any mortgages, it can bolster your present income by $50,000, one-fifth of the amount). 

Q&A 3.

USC Wife With Two USC Children, One With Cerebral Palsy, Wonders How to Handle Husband's Situation Who Has Voluntary Departure and Did Not Leave.

A wife asks:

I am now a U.S. citizen and want to apply green card for my husband.  He came to U.S. in1993 and in 1996, judge ordered voluntary departure.  He did not leave.  He does not have criminal record and filed tax returns for the past 8 years.  We have two U.S. citizen children, they are 8 and 3 years old.   Our eldest son has cerebral-palsy and as of today, he still cannot walk. 

My questions are:
Can we apply for waiver?  Do we must hire an attorney to reopen his case before filing waiver application?  Can I file I-130 and I-485 applications myself?  If so, what are the procedures?  Will my husband be arrested?

Dear reader:

As your husband incurred an order of voluntary departure, his case is within the jurisdiction of the immigration court, and not the Immigration Service.  Therefore you cannot file an I-485 application to adjust his status with U.S.C.I.S.  Filing a stand-alone I-130 relative petition for your husband could very likely result in an invitation from U.S.C.I.S. to attend an interview to determine the bonafide character of the marriage.  At the interview, there is a likelihood that he would be arrested because of the outstanding deportation order.  As his case is complex, I cannot encourage you to file I-130 and I-485 applications by yourself.  His case must be reopened as he was under deportation proceedings, but a large question is whether he would be able to adjust status even if his case was reopened. 

I note that your husband came to the U.S. in 1993 as per your letter, but it does not state the manner in which he entered.  If he came to the country without inspection, e.g., sneaked across the Canadian and Mexican border, he is precluded from adjustment of status for entry without inspection unless he has the benefit of Section 245(i).  That provision allows eligible individuals to adjust status in the U.S. upon payment of a fine amount of $1,000 if they filed a labor certification application or immigrant visa petition by April 30, 2001, and were physically present in the U.S. on December 21, 2000.  An earlier version does not require physical presence if the applicant filed a labor certification application or immigrant visa petition by January 15, 1998. 

I strongly urge you to locate a competent immigration attorney who can assess your husband's case before trying to file a motion to have his case reopened.  The fact that your eldest son has cerebral palsy is a strong humanitarian factor in favor of reopening if your husband is eligible for adjustment, eg, that he either entered the country legally, was paroled, or has Section 245(i) entitlement. 

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.