World Journal Weekly Q & A - September 30, 2012

Q & A 1. 2.

Q&A 1.

Green Card Holder Through Asylum Wants to Bring Husband That She Divorced and Remarried After Asylum was Granted to the States Under Follow to Join Asylum Provision

Zhang reader asks:

I divorced in China in 2006.  In 2007, I came to US and got aslyum approval the same year.  My son came to US as an aslyee dependent in 2009.  March 2009 I got my green card.
 
In 2012, I went back to China and remarried my ex-husband. I want to apply for him to come to US.  I wonder if applying for him as aslyee spouse is much faster than as green card holder's spouse.
 
My question is: can I still apply for my husband as Aslyee dependent(like my son) so he can get approved faster than green card holder' spouse? do I have the option between?

Dear reader,

While your divorce did not sever your bonds with your son, the divorce did make your husband ineligible for any immigration benefits to which he would have been entitled  during the time of your divorce.  You gained your political asylum approval in 2007, and the marital relationship would have had to exist in that year in order for your husband to be considered an asylee dependent.  Even if you had not divorced, your husband would not be eligible for dependent status now as Form I-730 for follow-to-join asylum dependent benefits through asylum can only be filed within two years of your obtaining your asylum approval.  I suggest that if you have not already done so, you can apply for his I-130 relative petition as a green card holder spouse or wait until the time that you become a U.S. citizen to do so.



Q&A 2.

Candidate for Obama I-601A Waiver is EWI Wife with One Child and Husband Who May Naturalize

Zheng reader asks:

My wife came to U.S. in 2000 without entry record and was not arrested.  She does not have any criminal record.  In 2003, she got an ID in North Carolina but it had been expired.  In 2003, she got a tax ID and started filing odd jobs income taxes.  After we were married in 2009, we filed joint returns.  Our child was born in 2010.  I will be taking citizenship test in 9/2012.  My question is that if I am naturalized, can my wife adjust status in the U.S.?  I was told the only thing we need to do is to file waiver which is a new law to be effective at the end of this year and the case law number is I603.  Does my wife qualify for this new law?  What papers should we prepare at this time? 

Dear reader:

Unless your wife has the benefit of section 245(i) under which she was the beneficiary of a labor certification application or immigrant visa petition filed by April 30, 2001 and was physically present in the U.S. on December 21, 2000, she is not eligible for adjustment of status under present law. 

Under a new program by the Obama administration to take effect later this year, she would be allowed to file for a waiver of having been in the U.S. illegally for at least one year and wait to see if it is approved prior to making the decision of whether to go out of the U.S. to attend an immigrant visa interview at an American consular post.  Under present law, your wife would be barred for 10 years from returning to the U.S. if she took a trip overseas.  Current procedure requires a denial of the immigrant visa at the American consular post and her only then being allowed to submit an application for a waiver of the 10 year bar - during which adjudication, she would have to remain outside the U.S. in the hope that it is approved.  Under the new Obama program, your wife would already have the knowledge that her waiver was approved before leaving the U.S. for the immigrant visa appointment at the American consulate.  She should then have a normal interview for her immigrant visa and assuming that the visa is issued, she would return to the U.S. with the immigrant visa shortly after the interview.  The waiver application will be submitted on Form I-601A., which has not yet been officially released.  Your wife would likely qualify for such a waiver based upon extreme hardship to you if you become a U.S. citizen. 

We are presently suggesting that individuals who are interested in the procedure begin by filing the I-130 petition for alien relative for their spouses as early filers will not have to wait as long as those who have done nothing when this program comes into effect. In your case, of course, the first step would be your applying for naturalization.  

 

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.