World Journal Weekly Q & A - May 20, 2007

Q & A 1. 2. 3. 4.

Q&A 1.

Things to Consider When Petitioning a Parent for Adjustment of Status Who is Still in Status As a Visitor and the Petitioner Must Wait Over a Year to Become a U.S. Citizen

A reader asks,

My mother came to the United States as a B-2 visitor in January 2007 and was given six months to stay. I will probably be able to obtain my citizenship around the end of 2008. I and my husband would like my mother to continue to stay with us and help us take care of our kids. Can we get her an extension until the time that I become a citizen so that I can sponsor her?

Dear reader:

The law generally allows parents of U.S. citizens to adjust status to permanent residence when the son or daughter becomes a U.S. citizen and is over the age of 21 regardless of the parents' overstay. An extension would not solve your situation since U.S.C.I.S. will generally not give a B-2 visitor visa extensions for as long as you need. However, prior to making your decision, you should also consider whether you or your mother are actually willing to have your mother stay in the U.S. illegally during the period of time required to accomplish your purpose. Many people abhor the idea of being illegal in the U.S. for even one day.

Q&A 2.

Asylee Wishes to Explore Employment Based Immigration Options for Adjustment of Status -- What to Look Out For

Website Reader Asks,

My wife received political asylum through the one child policy of China and I received it at the same time as her dependent. However, I do not wish to use the asylum status to apply for the green card. I believe that I should be able qualified under a national interest waiver or as an extraordinary alien under the first employment category. My present employer is willing to sponsor me but I am not willing to wait so long for a labor certification. I was previously an F-1 student, but stopped maintaining my F-1 status when I obtained my asylee status a year ago. I have never applied before for the green card. Can you see if I am eligible for these categories through reading over my resume?

Dear reader:

In looking over your resume (only two published papers) and the fact you are now working for a private bank, I do not see that you qualify for a national interest waiver or can be considered an extraordinary alien as judged by the U.S.C.I.S.. You are also not eligible to adjust status on the basis of a labor certification filing even if you decided to go in that direction as the immigration laws do not allow individuals to adjust status through the employment based categories who are not maintaining nonimmigrant status. As you previously never took any steps towards obtaining permanent residence, you would not be a beneficiary of section 245(i ) who would be allowed to adjust status upon the payment of a $1,000 fine. The immigration laws allow employment based individuals to adjust status even if out of status for 180 under section 245 (k), but you have already abandoned nonimmigrant status for one year. Readers should note that individuals who are no longer holding nonimmigrant status are not adjustable and asylee status is not considered non immigrant status. So with a labor certification filing, you would have to interview at an American consulate or embassy outside the U.S.. Under the circumstances, you may give further consideration to immigrating under your wife's asylum case which of course would allow you to adjust status under that category. Kindly note that the eligibility to adjust status under asylum cannot be transferred over to an employment based or any other type of case.

Q&A 3.

Father Sponsoring His 15 Year Old Illegitimate Son Must Show Parental Care - Suggestions on What to do Now

A father asks:

I immigrated to the United States through my job in 2002 and just became a citizen this past year. Before I came to the U.S., I was single but had a child with a girlfriend at the time in Taiwan. However, we stopped seeing each other when she was pregnant. My son was born in 1992. Since his birth, his mother wants nothing to do with me and so I have had no part in my son's life. However, he wants to come to the U.S. now and his mother agrees that I can sponsor him as my son because she wants him to have a better life. Will I have a problem because I have never visited him since he was born?

Dear reader:

A father cannot sponsor an illegitimate child for immigration unless he exhibits a degree of parental care prior to the child's turning the age of 21. In this case, you are fortunate that the child is only 15 in this year. I suggest that prior to filing the I-130 (petition for alien relative), you should take some time to exhibit a degree of concern for the child including possibly visiting him, registering your name as his father if such has not already been done, sending money, writing letters, calling, exchanging e-mails, etc. In doing so, you would make the case much easier for yourself and the U.S.C.I.S.

Q&A 4.

When Can I Leave my Present Sponsoring Employer and Safely Keep my Old Labor Certification Case?

An Employee Asks,

My company is sponsoring me as a senior technician, and I have just received an offer from another company as a development scientist at a higher rate of pay. My labor certification was approved in September 2006 and the I-140 petition was approved in January 2007. At that time, I filed the I-485 application to adjust status. The new company wants me to start by April 1st. If I do that, what will happen to my green card application? Will I be able to keep it or will I have to start all over again?

Dear reader:

Under the American Competitiveness in the 21st Century Act (AC-21), an individual who already has an I-140 preference petition approved and has had the I-485 adjustment of status application pending for 180 days is allowed to change employment and not lose the approved petition so long as the employment is in the same or a similar occupation. In your case, there appear to be two questions -- the first whether the new job of a development scientist is in the same or similar occupation to your present job as a senior technician. That determination will be made by the U.S.C.I.S. after consideration of all of your representations. The second question is whether you can keep the case if you leave your present employment prior to the 180 days having passed. U.S.C.I.S.'s current interpretation focuses upon whether there was a bonafide position at the time that the I-140 petition was filed and also at the time that the I-485 was filed. That is a question of fact also be determined by the U.S.C.I.S. officer. I do note, however, that the safer route is to wait the 180 days prior to changing to a new employer.


Copyright © 2003-2007 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.