Published on the World Journal Weekly on May 15, 2016

Q&A 1

Reader Wants to Know Options for Brotherís Children to Gain Immigration Through Brotherís F-4 Petition If They Come to U. S. Under B-2 Visas.

Li reader asks:

I am a U.S. citizen and filed papers for my younger brother’s family of 3 over 1 year ago.  He has two children, ages 12 and 10.  I want my brother’s two children to come over under B2 visas and stay here.  When my brother’s priority date become current, can his children adjust status in the U.S.?  Will they be aged out?  If their mother marries a U.S. citizen, can they adjust status in the U.S. without leaving the country?

Dear reader,

The projected waiting time for an F-4 sibling case is approximately 12 years. Whether your brother’s 2 children will be able to immigrate with their father depends upon the length of time for the priority date to become current and whether time can be recaptured under the Child Status Protection Act (CSPA) if the children are over the age of 21 at the time of visa availability. If your brother’s 2 children come to the U. S. under B-2 visas, they are not allowed to adjust status assuming that they still qualify as children unless they maintain legal nonimmigrant status. That would involve being legal in the country for approximately 10+ years. It is a possibility that if their mother marries a U. S. citizen, they would be able to adjust status in the U. S. without leaving the country. That would depend upon their ages at the time that their mother marries a U. S. citizen. Marriages which are celebrated while children are under the age of 18 create a step relationship under which the stepparent can petition for a stepchild under the immigration laws. Such a relationship would be considered one of “immediate relative” of a U. S. citizen in which overstay of a B-2 visa would be forgiven. I note, however, that while U. S. immigration laws embrace bona fide marriages in which the married couple are living together as husband and wife, non-bona fide relationships created just to obtain residence status and only connected with a legal marriage document can incur fines of $250,000 for each party to the conspiracy along with 5 years in federal prison.

Q&A 2

Reader Wants to Know If 90 Days Filing Beforehand is Applicable to the Four-year and One Day Rule for Naturalization

A PA reader asks:

I received my green card in 9/2007.  Due to my wife’s illness, I went back to China to take care of her.  I was in China in 12/2007 for over 6 months and in 3/2011 for over 1 year.  Unfortunately, my wife passed away and I came back to the U.S. on 9/11/2012 on reentry permit.  From 9/11/2011 to 9/13/2016, I will be in the U.S. continuously for 4 years and 1 day.  Does that mean I can file for naturalization 90 days before, which will be 6/13/2016?  Do I need to file N-470 form?

Dear reader,

The four-year and one day rule means for years and one day. There is no 90 day ahead of time ability to file before the time is met. The four-year and one day rule is a special one for individuals who have left the U. S. for a period of time disrupting continuous residence. Maintaining a continuous residence – in this case 5 years – is a requirement for naturalization. The special rule allows an individual to count back an entire year based upon the extra day. An N- 470 application to preserve residence for naturalization purposes is neither required nor appropriate.


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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