World Journal Weekly Q & A - January 2, 2011

Q & A 1. 2. 3.

Q&A 1.

Political Asylum Applicant With Court Date Next Year has Wife who Became Permanent Resident and Wants to Know Whether to Continue Court Case or Go Through Wife's Application for His Green Card.

Li reader asks:
I came to U.S. in 4/2008 and applied for political asylum.  My court date is scheduled in 6/2011.  My wife is now a U.S. permanent resident.  Should I continue my court case or my wife can file papers for me for green card?  Which one is better?

Dear reader:

It may not be your choice whether to continue your court case or not.  If you have been issued a notice to appear (NTA) in the immigration court, termination would generally be within the province of the immigration court and DHS, your opponent in court.  In addition, you and your lawyer must determine whether you are eligible for adjustment of status to permanent residence.  An immigration judge can only grant relief which is possible under the Immigration Act and remand or termination is usually only agreed to where there is ready relief such as the probability of adjustment of status. 

If you are holding legal non-immigrant status despite the language on the NTA, you would be eligible to adjust status.  If you are not legal but eligible for adjustment of status under Section 245(i) which allows most illegal individuals to adjust status upon the filing of a labor certification application or immigrant visa petition by April 30, 2001, and were physically present in the States on December 21, 2000, you would also be eligible for adjustment of status.

Assuming that you are eligible for adjustment of status, your case for adjustment of status can be heard by either the immigration court or, if it so decides in conjunction with an agreement from DHS, by U.S.C.I.S. upon remand or termination.   If you discover that you are not eligible for adjustment of status after consultation with your attorney, you would then have to decide with him or her which options to pursue in the immigration court. One option may be pursuit of your political asylum application.  Another may be withdrawal of the political asylum application and acceptance of voluntary departure if available and leaving the U.S. to pursue the immigrant visa overseas at an American consulate or embassy, normally in your home country. 

Under most situations, you would be barred from returning to the U.S. for 10 years if you had stayed in the U.S.  illegally for one year or more.  You would then have to apply for a waiver to overcome the bar - which waiver may be granted by an overseas U.S.C.I.S. office. The waiver would be applied for directly at the consulate or embassy on form I-601 Application for Waiver of Grounds of Excludability following an immigrant visa denial.  A waiver is only available if you can prove that your return is causing extreme hardship to your U.S. citizen or permanent resident spouse or parent. 

Q&A 2.

U.S. Citizen in Taiwan who Married Wife in China Wants to Process Her Immigrant Visa at the AIT - What Are the Possibilities and How Long Can She Remain Overseas with the Green Card?

Lin reader asks:

I am an U.S. citizen and currently living in Taiwan (I have a Taiwan household).  January of this year, my wife and I registered our marriage in China.  In April, she moved to Taiwan to stay with me.  She has a China passport and I want to apply a green card for her.  My questions are:

1. After filing papers with U.S. Immigration, can my wife complete her visa procedure with AIT?
2. If my wife goes to U.S. under a visiting visa, can she adjust her status in the U.S. without going back to China?  How long will it take?
3. Is there a time limitation for a green card holder to reside overseas?

Dear reader:

1.   As long as your wife has the ability to remain in Taiwan legally, she should be able to complete her visa procedure at the AIT.  I note that as you appear to be residing in Taiwan on more than a short-term basis, you may be able to file the I-130 petition directly with the AIT.  You are also responsible for providing an I-864 affidavit of support and proving that you still have a domicile in the States. 

2.   If your wife has the intention of adjusting status to permanent residence in the U.S. when she applies for the visiting visa or when she enters the United States, such would be considered a form of misrepresentation which would bar her from immigrating.  Such a bar would require approval by U.S.C.I.S. of a waiver based upon extreme hardship to you or (if she has) a U.S. citizen or permanent resident parent.  Readers should note that persons with visiting visas who do not enter the United States with the intention of adjusting status may be allowed to adjust status in the U.S. without leaving.  The normal time for processing an adjustment of status application is approximately six months or less nationwide

3.   Green card holders are supposed to regard the United States as the country of their permanent residence, which means that they should reside in the U.S. for at least six months out of the year.  Such is considered safe.  Less safe are those who for years enter the U.S. occasionally during the year, just touching base before leaving again; those who stay out of the U.S. for over six months but less than one year habitually (the green card permits reentry within but not including one year); and those who apply for reentry permits and leave the U.S. for long stretches of time, especially those taking out reentry permits for the second and third times.  Completely unsafe and grounds for taking back the green card (unless there are extremely unusual circumstances) are those who attempt to reenter the U.S. with only the green card after being overseas for a year or more, and those returning with a reentry permit after a trip of two years or more. 

Q&A 3.

Reader Petitioning for Sister Wants to Know What Effect the Taking of Food Stamps Will Have on Sister's Immigrant Visa Application - Whether to Stop Food Stamps Now?

He reader asks:

I am an U.S. citizen and the priority date for my sister’s application is current.  My family of 4 files annual income tax return in about $15,000 range.  I have a friend is willing to be the co-sponsor.  However, my family has been received food stamps for some time.  If we continue to receive food stamps will it affect my sister’s immigrant visa?  Should I stop receiving food stamps at this time?

Dear reader:

Although the I-864 affidavit of support form does not ask whether the petitioner has been receiving means tested benefits such as food stamps, some consular officers in our experience have inquired into the situation of the petitioner's receipt of such and taken such confirmation negatively in deciding whether the support obligation can be met.  Such officers doubt the actual willingness of the co-sponsor to support the visa applicant where the co-sponsor has not taken any steps to support the petitioner.  We cannot state that a consular officer would take such a tack, however.  Neither can we tell you that stopping food stamps at this time would have any effect upon the consular officer's decision.  That choice would be up to you and your weighing of the need for food stamps and the weight that you assign to giving your sister every opportunity to immigrate. 

Copyright © 2003-2011 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.