Q & A March 2, 2003

Q & A 1 2 3


Dear Mr. Lee:

I entered the U.S. with a B-2 Visa. After extending it for half a year, I changed it to an F-1 Visa. I applied for an extraordinary ability visa in 3/01, and the I-140 was approved in September. I received INS receipt for the I-485 application in December. Since then, I have stopped going to school. I did the fingerprint in 1/2002, and my lawyer informed me that my file was transferred to the local INS, i.e. INS in New York in November. Currently I am waiting for the I-485 approval.

  1. My advance parole will expire soon. If I apply for a new one and return to China, can I reenter the U.S. without any troubles by using it?
  2. I studied at a language school for more than one year until 12/2001. The school told me recently that I didn’t have the F-1 status any more because I didn’t go to school for a long time. If I reapply an F-1 visa, will it affect my I-485 approval (my lawyer said yes, but some other lawyers said no) In addition, does receiving I-485 receipt mean that the Green Card is definitely to be issued?

Dear reader:

  1. In looking at the chronology of events as you have related them, it is clear that you are not barred under the three and 10 year bars of IIRAIRA for having stayed illegally in the United States for certain periods of time after April 1, 1997. I would assume that if the INS issues an advance parole and you commit no acts involving bad moral character while overseas, you should certainly be allowed to return.
  2. An F-1 student is an individual who holds non-immigrant intent. As you have already filed an I-485 application to adjust status to permanent residence, it appears that you would have problems establishing that facet in reapplying for an F-1 visa status. It is true that you are no longer considered an F-1 student because you have not maintained your studies, but you are presently in a quasi legal state because of your pending adjustment of status application. In most cases, individuals would be willing to wait for an INS determination on the I-485 application. In the event that you require employment authorization, you can request such through the filing of an I-765 application for employment authorization with appropriate fee. You have asked whether receiving an I-485 receipt ensures your attaining permanent residence. It does not. A receipt is only a receipt and only shows that the INS has received the monies which you have paid it to take in and have an officer adjudicate your application for adjustment of status. By the same token, a transferral of I-485 application from the regional service center to the local INS office does not mean that a case is in trouble. It has been our experience that service centers transfer cases out for many reasons, most commonly because the fingerprints are not able to be read. I suggest that, if there was no fraud in your application, you wait until the INS apprises your attorney as to what further information it requires.

Dear Mr. Lee:

I am a U.S. citizen. I petitioned for my adult unmarried son in China to immigrate to the U.S in 1999. A few days ago I received a notice from the National Visa Center, asking me to prepare for the process. My son, however, just got married in China a month ago.

Question: Will my son still be able to get the visa? If he has to be petitioned for as an adult married child, can he still use the original priority date of ’99?

Dear reader:

As your son has already married, he is not entitled to obtain his permanent residence as the adult unmarried son of a U.S. citizen. He is, however, still entitled to his original priority date under the F-3 preference category for married sons of U.S. citizens. Of course, that preference has a much longer waiting period. You will not have to send another petition to the INS. You can inform the National Visa Center by letter of the change of circumstances for your son, and enclose copies of the marriage certificate and proof of birth of your son's wife.


Dear Mr. Lee:

My wife and I became permanent residents on 10/30/01 and 12/27/01, respectively. Now we want to apply for the immigration of our unmarried son, who lives in Shanghai and was born in 1956.

  1. Can a permanent resident petition for an unmarried son over the age of 21? Are there any other better and faster ways for him to immigrate?
  2. Can an immigration application and an H-3 petition be applied at the same time? Which one is faster or surer?
  3. Can a permanent resident over the age of 75 or 80, who has resided in the U.S. more than five years, be exempted from the naturalization testing?

Dear reader:

  1. A permanent resident can petition for an unmarried son over the age of 21 under the F-2B category. Of course, immigration under this category takes a very long time. Presently there is almost a nine year waiting period according to the visa bulletin of the Department of State. You may shorten the process by applying for your son at this time and then later naturalizing. In such case, your son would be entitled to the earlier priority date and his category would switch to the F-11 preference for unmarried sons of U.S. citizens when you are naturalized. That category presently has a 3 year+ waiting period according to the visa chart. You should remember, however, that if only one of you (and not both parents) petitions for your son and the other parent is the one who naturalizes, your son would not benefit since one parent's naturalization is not transferable to the other parent. Another way that your son may be able to immigrate is through his education and skills if they are needed by a U.S. employer. In such case, he may be eligible for a non immigrant working visa to enter the United States. If not, his skills may be such that he might be able to be sponsored by a U.S. employer directly for permanent residence and immigrate within two-three years.
  2. An H-3 visa is for an individual who will be trained by an organization in the United States for a period (total time allowed is 2 years) of time in order that the alien can return overseas with enhanced skills to benefit that organization in some ways overseas. The candidate for training must be qualified, but not overly qualified as there would then be no purpose to the training. The organization should be sufficiently large to ensure that proper training can be given to the candidate and that the candidate will not be engaging in productive employment. In addition, the candidate must convince the American consulate officer that he/she has no intention to immigrate to the U.S.. These are the obstacles in the way of individuals who attempt to use H-3 visas to enter the United States. From the time that an H-3 is filed until the time of interview at the U.S. consulate is approximately four-six months. Because of the concern with homeland security, enhanced clearances at the consulates may delay the entry even longer. An I-130 (petition for alien relative) for your son is certainly a much surer application, but one which takes very much longer. If the I-130 preference petition is filed prior to the H-3 petition, there is a very good likelihood that the H-3 petition will be denied for lack of non-immigrant intent or the individual denied at interview before the U.S. consulatr officer if the INS approves the petition.
  3. The law does not provide for exemption from testing for individuals merely on the basis of advanced age. It provides for exemption from testing in English of individuals who have been in the United States for 20 years as permanent residents and are at least 50 years of age or for individuals who have been permanent residents for 15 years and are 55 years of age. These classes of individuals are entitled to testing in their native languages. For individuals who have been permanent residents for 20 years and who are at least 65 years of age, the law of course waives testing in English and allows for special consideration under which the INS asks questions concerning history and government from a list of 25 and the applicant must answer at least 6 correctly to pass. Individuals who are physically unable to be tested because of disability can fill out Form N-648 (Medical certification for Disability Exceptions) accompanied by a certification of disability including prognosis from a licensed physician, doctor of osteopathy, or clinical psychologist.

 

Copyright © 2003 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.