Q & A August 31, 2003
Q & A 1
Dear Mr. Lee:
My husband and I came to the U.S. with B-1 visa. In 1/1997, a restaurant
sponsored me for the immigration application of a skilled worker
(chef).
My husband petitioned for political asylum in 8/2000 with religious
grounds, and we got our fingerprints in 10/2000. So far there is
no interview. My I-140 was approved after 22 months of waiting,
and my husband and I submitted I-485 for status adjustment in November
of the same year. We’ve been waiting for 27 months since then.
Meanwhile, we have had our fingerprints done twice, and have submitted
our two-year tax returns as well as certificate from the restaurant
owner.
Questions:
- Should my husband withdraw his asylum petition? His attorney
told us that after 9-11, the immigration cases were scrutinized
strictly, and that it is better to withdraw the case when the
interview notice comes. In your opinion, when is the better time
to withdraw the petition? Does the petition affect the I-485 application?
- We plan to go back to China to bury his parents’ ashes
when our Green Cards get approved. Will INS deem my husband as
an asylee? Will my husband encounter any troubles when he enters
the U.S., or when he goes to the interview for naturalization?
- How much longer should I wait for my I-485? At the interview,
will the INS official ask questions regarding my husband’s
asylum case? Will I have some trouble?
- My son graduated from a culinary school in China. He is a national
first-grade chef with 12-years working experience. Is it possible
to apply immigration for him as a skilled labor (chef) in the
U.S.? Is it the same for him to wait overseas and in the U.S.?
What is the success rate?
Li
California
Dear reader:
- Your husband should withdraw his asylum application at the earliest
opportunity if he and his attorney have confidence that your I-485
application will be approved. He should keep the asylum application
if there are significant doubts as to the approvability of your
case. He can wait until the time that a request for interview
is sent -- however, there is the possibility that a notice of
asylum interview could get lost, misdirected or sent to an old
address and upon non reply, the asylum office might issue your
husband a notice to appear before an immigration court. In such
case, the I-485 application for your husband would be severely
affected as the BCIS will not allow an individual to adjust status
to permanent residence while there is an outstanding notice of
intent to appear. You may be similarly affected if you were included
in the asylum application. Withdrawing now, however, does not
mean that the BCIS will forget all about the asylum application.
If the asylum application is withdrawn at this time, the BCIS
will still look at your husband's asylum application to ensure
that there are no significant contradictions between the representations
made in the asylum application and the representations on the
I-485 application.
- If your husband gains his permanent residence as your dependent
on the employment based case, the BCIS will consider him to be
only the dependent of an employment based principal. He will not
be deemed an asylee. He should not encounter problems on this
basis when he reenters the United States or when he later interviews
in connection with his naturalization application.
- It is difficult for me to say when your I-485 will be adjudicated.
Your letter has a postmark of San Jose, Calif., and I assume that
the I-485 was submitted to the California Service Center of the
INS. According to the Center processing times, your case should
have been adjudicated quite some time ago. You should have your
case status traced to determine why your case is taking so long.
If you and your husband are interviewed in connection with your
employment based case, the BCIS examiner may ask questions concerning
the asylum case if there are discrepancies between the two cases.
Depending upon the importance of the discrepancies, you may or
may not have any trouble.
- If your son is indeed a national first grade chef with 12 years
of working experience, he should be able to immigrate to the United
States through employment based immigration. As there are shortages
of specialty foreign cooks, his chances of immigrating are high.
He can wait overseas while a restaurant sponsors him for permanent
residence and interview at the American consulate in Guangzhou
for his immigrant visa.
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