Q & A July 20, 2003

Q & A 1

Dear World Journal Immigration Mailbox

I came to the U.S. in 1978. My wife worked in the U.N., so I stayed in the U.S. with the status of a U.N. employee’s spouse. Our son was born in New York, and now is 22 years of age. Now my wife will probably be laid off or retired in advance.

Question:

1. Can our son petition for both of us, even though he doesn’t have a full-time job?
2. Because of the crime of fraud, I was ordered to go to jail for two years in Hong Kong in 1976, and was released in 1977. Can I apply for a waiver of my crime record? How so if my son applies the Green Card for me?
3. I have resided in New York for the past 25 years, except for several years when I was transferred to work in China. Will it affect my Green Card application?
4. How can my son process the petitions for my wife and me now? We both live in New York.

Chen
New York

Dear reader:

1. Your son who is a U.S. citizen 22 years of age can petition for you even though he does not have a full-time job so long as you and your wife have a co-sponsor available who is capable and willing to give binding I-864 affidavits of support for both of you.
2. If you were convicted of fraud and such fraud involved the loss of $10,000, you would be ineligible for permanent residence as having committed an aggravated felony. There is no waiver for an aggravated felony. In the event that the amount was less, you might be eligible for a waiver, but such would involve proving extreme hardship to the your son if you were barred from the U.S.. Even if you meet the extreme hardship standard, the BCIS has discretion as to whether the waiver should be granted.
3. Individuals who have resided in the U.S. for long periods of time without significant break in the residence may be eligible for relief before an immigration court. Such relief for them (cancellation of removal) depends upon the degree of hardship that U.S. citizen or permanent resident spouses, parents or children (unmarried and under the age of 21) would suffer upon the alien's being barred from the U.S.. The standard is exceptional and extremely unusual hardship. Such residence periods would only come into play for you if your fraud crime was not an aggravated felony, and if the BCIS was to deny your adjustment of status application in the exercise of discretion because of the crime. In addition, you would have to possess the qualifying relation with a U.S. citizen or permanent resident to establish basic eligibility.
4. Your son and you can submit 1-130 (petition for alien relative) and I-485 (adjustment of status application) packages to the BCIS district office in Manhattan for you and your wife. You can but do not have to submit a waiver application with the I-130/I-485 package. At the time of interview or if requested by mail by the BCIS, you can send in the waiver application so long as the fraud was not an aggravated felony.

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.