Published on the World Journal Weekly on September 20, 2015


Q&A 1. 2. 3. 4. 5. 6.

What Happens To The Petition For My Daughter If I Die? Can My Wife Take Over The Case?

Mr. Fang asks:

I am a 79 years old U.S. citizen.  I filed papers for my single adult daughter who is in China to immigrate.  I think she will have to wait for about 7 years. My questions are:

  1. Can my wife continue this case if I pass away before my daughter’s priority date becomes current?  My wife is my daughter’s stepmother who I married when my daughter was 3 years old.

  2. My daughter received a B-2 visa valid for 10 years in 3/2015 and she came to visit us in the U.S. for about 20 days in 4/2015 and went back to China.  After my I-130 application for her, can she still use the same B-2 visa to come to the U.S. to visit me during the waiting period?

Mr. Lee answers:

  1. Your wife cannot simply substitute herself in your stead if you pass away. She would have to go through the humanitarian reinstatement process that U.S.C.I.S. provides for this type of cases in order to continue. It is a lengthy process requiring much documentation. If your wife has green card or U. S. citizen status, she could alternatively apply now for your daughter since the step relationship was established in time for it to be recognized under the immigration laws (qualifying marriage celebrated before the child turns the age of 18). Your wife would establish a new priority date of her own for your daughter when she files .

  2. Since the time for waiting is so long, the presumption of immigrant intent occasioned by the filing of an I-130 petition is significantly lessened. She should be able to continue to use the B-2 visa to visit. She should of course always have a two-way ticket when she comes to the States.

Q&A 2.

What Good is the Reentry Permit Reader Was Told That Person Can Be Refused Entry Or Have Green Card Confiscated Even With A Reentry Permit?

A sister asks:

My 60 years old brother received his green card for 2 months and filed for a 2-year reentry permit.  He plans to go to China for one year and 10 months.  However, we were told that he had just received his green card and will leave the country for about 2 years, even with a reentry permit, he may be refused entry or confiscated his green card at the port.  We were told there was cases like that.  What is the chance that his green card will be confiscated?  What should we do if such event occurs?  If so, what is the use of the reentry permit?

Mr. Lee answers:

A reentry permit allows an individual to be outside the U. S. for up to but not including 2 years. It is not a guarantee of reentry, but does improve the chances that an individual will not have a problem in returning to the U. S. as that person notified the agency ahead of time that he or she would be taking an extended trip outside the country. If your brother is questioned concerning his extended-stay outside the country, a Customs and Border Protection inspector would usually want to know whether he intends to make a pattern of such absences or if  this was a one-time occurrence. If he or she believes that your brother will establish his residence here, your brother would be allowed to enter. However, if the inspector believes that your brother has no intention of settling in the U. S., he or she could confiscate the card and give your brother the choice of either giving up and returning to China or staying here and explaining his right to the green card to the immigration court. In the latter situation, the government would have the burden of proving that your brother had abandoned his residence.

Q&A 3.

Reader Asks About Procedure For Replacing A Green Card That Is Soon Expiring.

Mr. He asks:

I am an 85 years old U.S. permanent resident.  My 10-year green card will be expired soon.  My questions are:

  • How early should I file papers to get a new card before the expiration date?  How long do I have to wait to receive the new card?

  • I will like to go back to China recently.  Can I come back in if my green card is expired?

  • I live at Waltham MA.  Where should I apply and get my new card?

Mr. Lee answers:

  • You can apply 6 months ahead of time. The current processing time chart of U.S.C.I.S. indicates that you would have to wait approximately 5-6 months to receive a new card.

  • You should be able to travel back to China since U.S.C.I.S. will give you authorization for a temporary extension of the card when you appear for biometrics (a biometrics appointment is usually scheduled within 1-2 months of the filing).

  • All I-90 applications to replace green cards are sent to the U.S.C.I.S. lockbox facility in Arizona:

  • If using U.S. Postal Service,
    PO Box 21262
    Phoenix, AZ 85036

  • If using express mail or courier service,
    Attention: I-90
    1820 E. Skyharbor,Circle S, Floor 1, Suite 100
    Phoenix, AZ 85034

The card should be sent to you at the address that you designate on the application.

Q&A 4.

F-1 Student Wants to Come to U. S. and Live With U. S. Citizen Girlfriend on Campus Any Immigration Problems?

A student asks:

I am coming to the U. S. next month in order to start my F-1 student studies in a PhD program. I’ve been having correspondence with a U. S. citizen girl for the past 6 months and I plan to live with her on the school’s campus. Is there any problem with that as far as my visa is concerned?

Mr. Lee answers:

I do not see how your wanting to live with someone on campus will impact your visa status or have any other consequences. I assume that the arrangement is okay with the school and that she is of the proper age of consent. If your relationship becomes such that you are engaged and go back home to interview for another F-1 visa, the question of nonimmigrant intent which is requisite to an F-1 visa may come up, but other than that, I do not see an immigration consequence.

Q&A 5.

Options On Marriage Immigration for An Overstayed Alien for a U. S. Citizen or Permanent Resident.

A girlfriend asks:

My boyfriend came to the U. S. 10 years ago on a work visa and never left. We are planning to get married now. What can we do?

Mr. Lee answers:

I will assume for purposes of your question that your boyfriend’s working visa was not J-1 exchange visitor and that he is not subject to a two-year foreign residence requirement. The following answer would be different if such was the case. If you are a U. S. citizen, your boyfriend’s overstaying his visa will not be a ground to deny and adjustment of status to permanent residence. If you are a lawful permanent resident, your boyfriend would not be adjustable, and he would have to take other measures to either wait until you are a citizen to sponsor him or (most favorably) for him to obtain a waiver of his overstay before he goes back overseas to interview for his immigrant visa. Such waiver would be pursuant to the I-601A program which is being expanded (timeline for expansion estimated in the spring of 2016) to allow persons who are not eligible to adjust status to obtain a waiver based on extreme hardship to a lawful permanent resident spouse or parent if the waiver is not granted.Current law only allows qualifying members to be U. S. citizen spouses or parents.

Q&A 6.

What To Do If The Priority Date Is Current And Nothing Has Come From The National Visa Center Except One Fee Bill.

A reader asks:

I filed my sister to immigrate as F-4 category.  The priority is current and I paid affidavit of support fee of $120.00 on-line in 6/2015.  What should I do next?

Mr. Lee answers:

The payment of the affidavit of support fee is only part of what is expected at the National Visa Center (NVC) to complete processing there. The 2nd payment must be made for the immigrant visa processing and is $325 for each person intending to immigrate. Following the payments, you must submit affidavit of support forms with supporting documentation for each person to the NVC. The applicant(s) must submit immigrant visa application form DS-260 along with all supporting documents to the NVC. When that agency has all the documentation together and deems it acceptable, it will send the immigrant visa petition package to the appropriate American consulate or embassy for the immigrant visa interview to be conducted.


Copyright © 2003-2017 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.


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