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.
- 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?
- 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:
- 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.
- 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.
- 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?
- Can an immigration application and an H-3 petition
be applied at the same time? Which one is faster or surer?
- 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:
- 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.
- 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.
- 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.
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