World Journal Weekly Q & A - November 20, 2011I-485 Adjustment of Status Pending, Principal Husband Wants Divorce from Dependent Wife. What Can Wife Do?A wife asks: My husband is being sponsored by his company with a priority date of October 2004 under the quota for China for third preference skilled workers. We were married in China in 1998, and we came over under H-1B/H-4 visas in 2004. Our status is valid until 2013. We filed our I-485 applications in July 2007 and have just been waiting ever since. The problem is that I and my husband are separated, and he wants a divorce. He told me to go to the school and change my status to F-1 student, but the school official says that my application would be denied because I've already applied for immigration. What am I supposed to do? Dear reader: In the month of December 2011, the date of September 8, 2004 has been reached for visa availability under the Department of State visa bulletin for the employment based third preference. Based on past performance of the category recently, it would take approximately 3-4 months to cover the time until the quota becomes current to your priority date. I note that even when the priority date is reached, U.S.C.I.S. may take time thereafter to adjudicate the applications. I suggest that you try to work something out with your husband so that any divorce does not become final until you have obtained your permanent residence card. At that point, the card would be non-revocable. I agree with your school official that an application for change of status to F-1 would face difficulties, especially as the I-539 change of status application asks for information whether you have ever applied for an immigrant visa or I-485 adjustment of status to permanent residence. Potential EB-5 Investor Worries Over U.S. Residence Requirement for Green Card Holders.A potential investor asks: I'm thinking of applying for U.S. immigration under the EB-5 investor category under a regional center for $500,000. However, I am concerned that I will not be able to be in the United States too long afterwards because I'm still the owner of a factory in China. I have also heard that the U.S. expects green card holders to stay in the country at least six months every year. Is there a solution? Dear reader: If you are married, and the major reason for wishing to emigrate is for the family members, one possible solution would be to have your wife be the principal EB-5 applicant instead of you if she will be spending more time in the States. Also it should be remembered that the EB-5 program has become increasingly important to U.S.C.I.S. and the Administration in these economic troubling times in the U.S. Therefore immigrant investors may find a more relaxed attitude by immigration inspectors to their entries. Green card holders through investment should enter the U.S. at least once every six months, and remember that the maximum time that they can be out of the U.S. on the green card alone is up to but not including one year. If they apply for reentry permits, they may be allowed absences of up to but not including two years. It is also helpful to have as many ties and bonds with the U.S. as possible including real-estate, personal property, bank accounts, family members, payment of taxes, etc. Readers with Deportation Orders and Over 10 Years Residence in U.S. and Nine Year-old USC Child Ask if They Can Apply for 10 Year Green Cards.A Chicago reader asks: I came to U.S. in 2000 using other’s passport and was not arrested. I applied for Falun Gong but was denied. I appealed twice. Now I have deportation order. My husband came to U.S. in 1998 and is a family member of an asylee. He also has deportation order. We have two children. The eldest is 22 years old and a Chinese citizen. Our 2nd child is 9 years old, a U.S. citizen. We do not have criminal records and filed taxes for 8 years. Do we qualify to apply for 10-year green cards? Dear reader: You do not qualify for 10 year green cards because of the stop time rule. When you and your husband were served with notices to appear (NTA's) in the immigration court, your accrual of time towards 10 years was stopped. And unfortunately, the law does not allow you to re-accrue 10 years of eligibility following your deportation orders when you are in the U.S. I note that there is now a controversy concerning whether a new 10 years can accrue if you leave the U.S. and re-enter. The Third Circuit Court of Appeals had ruled in 2004 that the lawful reentry of the individual after the previous clock-stopping event allowed the physical presence clock to start anew. More recently, the Board of Immigration Appeals in 2010 held that continuous residence could not be restarted unless there was a waiver of inadmissibility granted. At this time, it does not appear that you have available relief. However, that does not mean that all hope is lost and that you or your husband will automatically be put on an airplane if either of you is encountered by U.S.I.C.E. At such time, you and your lawyer may be able to plead for the exercise of prosecutorial discretion by U.S.I.C.E. which, if granted, will allow you to remain in the U.S. under color of law. For more on the issue of prosecutorial discretion, please access our recent article, "Motions To Reopen Requiring Exercise Of Prosecutorial Discretion - Should They Be Treated More Kindly Under Administration's New Policy? ..." at http://www.ilw.com/articles/2011,0912-lee.shtm. 21st Century Meets Old Law as Couple Plans to have Baby Conceived Through Husband's Sperm in China and to Later Bring the Baby to the States.A wife asks: I am a permanent resident and my husband is a U.S. citizen. We have been trying for years to have a baby, but have not succeeded. I am now 45. It seems very hard for us to find an infant to adopt in the U.S., and the rules for foreign adoptions seem very restrictive. We're thinking very seriously about having my husband's sperm implanted into a woman in China who will carry the baby to term and then surrender custody rights to us. If we do this, how can we bring the child to the United States? Dear reader: This appears to be a convergence of today's science with yesterday's law. It would appear, however, that such may be possible with your husband ultimately filing a petition to have the child immigrate as his illegitimate child. Once in the U.S., the child would have a right to apply for U.S. citizenship. DNA testing at some point would probably be necessary from a facility in the U.S. in coordination with the American consulate. Your husband's name on the child's birth certificate, the contract of surrogacy, proof of payment to the woman, and the child bearer's surrender of all rights to the child would probably be very relevant. You or your attorney would also have to determine whether the actions would violate any state or federal laws in the U.S. and China.
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Copyright © 2003-2012 Alan Lee,
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