World Journal Weekly Q & A - April 17, 2011

Q & A 1. 2.

Q&A 1.

Can My Friend who Became a Permanent Resident Through Asylum Seven Years Ago and Cannot Pass His Naturalization Test Return to China for a Visit?

A reader asks:

My friend is an asylee.  Because he is over certain age, he tried many times for naturalization but failed on English tests.  His mother is over 90 years old and he wants to go back to China to visit her, unfortunately because of his asylee status he could not.  I suggested for his U.S. citizen son to file a new green card application for him.  He told me he had consulted an attorney and was told he must return to China in order to re-file a new green card application thru son and that he could not stay in the U.S..   My friend had come to U.S. over 10 years ago and received his green card for about 7 years now.  He could retire next year.  He did not want to re-file thru his son.  Can he go back to China to visit his mother or can he re-file green card application in U.S. through his son?

Dear reader:

If an individual has received permanent residence for a long period of time such as your friend, he/she should be able to visit the country of persecution without problems from the U.S. side.  The U.S. Department of Homeland Security (DHS) wishes to be assured that the individual still has a fear of persecution (or was persecuted in the past) when it is awarding asylum adjustment status to an applicant.  It will not seek to revoke asylum status after such a long period of time since circumstances can change over the years.  In addition, before seeking to revoke such status for individuals who travel to the homeland of persecution in situations involving trips made before obtaining adjustment of status or trips made shortly after adjustment of status is granted, DHS will take into account factors such as the reason for the travel, length of stay, whether a passport of the persecuting country was renewed or a new passport applied for, where the individual stayed during the visit home, and whether he/she worked during the time that they were there.  Even though your friend will most likely not face any problems from U.S. immigration authorities, he should consider problems that he may face from the Chinese authorities if he returns to China. 

Q&A 2.

How Can I Expedite Our Bonafide Marriage Case Which Was Just Turned Down by the Guangzhou Consulate and Should I Continue my Wife's Daughter's Case?

Sun reader asks:

My wife’s immigrant visa was denied in Guangzhou Consulate.  We were told that Guangzhou did not believe our marriage was bona fide and that her case would be retuned to the U.S.C.I.S.  Our marriage is real.  For the past two years, I went back Fuzhou 4 times to be with my wife, each time I stayed for over one month.  I was told 8 out 10 marriage cases were denied in Guangzhou and that they could not identify the real case from the fake case.  I felt I was being played.  My questions are:

1. Is there a fast way to remedy my wife’s case, so that her case can be approved?
2. My I-130 application for my wife’s daughter has been approved and the case is in NVC.  However, I have not received her visa fee notice from NVC.  Is there necessary to continue her case now that my wife’s case is denied? 

Dear reader:

1.   Unfortunately it appears that the American consulate in Guangzhou is overly suspicious of marriage cases and we have had situations involving undoubtedly bonafide marriage cases which were turned down.  Consular officers wield a great amount of power in these situations and suffer no consequences for wrong decisions as they cannot be sued in any court.  This is called the doctrine of consular non-reviewability.  There is no quick fix for a case which is turned down as being a non-bonafide marriage.  The denied petition will wend its way back from Guangzhou to the U.S.C.I.S. regional service center or local immigration office which approved it, and the U.S.C.I.S. office will review the case again before deciding to revoke or reaffirm the former approval.  This takes a long period of time although U.S.C.I.S. has improved its timing after a storm of complaints 2-3 years ago that the process was taking at least two years for the agency to make its review.  Some petitioners have filed new I-130 petitions in the hopes of obtaining a faster adjudication, but run the risk that a consular officer after receiving the second approved petition may again turn down the case at interview with the reasons that the complaints of Guangzhou were never dealt with by U.S.C.I.S. and that there are no developments since which would convince him or her to grant the immigrant visa.  Of course, a new child would be a significant development which could change a consular officer's mind. 

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.