Published on the World Journal Weekly on September 11, 2016

Q&A 1

Eligible for Expanded Program When Chinese, Sneaked Across Border, USC Mother Applied for Me in 2014 and Have Old Labor Certification From 2005?

I am from China, sneaked into the U. S. across the Mexican/California border in 2004, got a job as a cook that sponsoring me for the green card in 2005, and we got the I-140 preference petition approved in 2008, but had to stop because I could not adjust my status in the U. S. and if I left, I would be barred from coming back for 10 years. I am no longer with the restaurant. I read about the new I-601A expansion rule and am excited. My mother is a U. S. citizen and applied for me in 2014. I am still single. She is in bad health and is depending on me for support. I think that this should be good for proving that she would have extreme hardship if I left the country. Do you think so? How long do I have to wait for my case? I have no problems with Immigration or the police anywhere.

Dear reader,

Under your mother’s petition in the F-1 category for unmarried sons and daughters over the age of 21 of U. S. citizens, you would likely have to wait at least another 5 years. That is because that category is only available for final action in the September 2016 visa chart for those who filed prior to 9/15/09. Another alternative that you may wish to explore is another labor certification application through an employer. Although the EB-3 category for skilled workers or professionals for China is only available for those who filed labor certification applications by 1/1/10, the fact that you already have an approved I-140 with a priority date of 2005 puts you in a good position as that 2005 date can be recaptured on a new labor certification/I-140 filing. If such are approved, your priority date would be current at the time of the I-140 approval, and your case would likely take approximately 2 years to complete. The fact that your mother is depending upon you for support would be an extremely favorable factor to consider in and I- 601A waiver application.

Q&A 2

Eligible for Expanded Program When Overstayed from Taiwan with Masters and Brother (USC) and Parents (LPRís)?

I am from Taiwan and came to the U. S. under the visa waiver program in 2013. In Taiwan, I had a Masters degree in mechanical engineering and a few years of engineering experience. I did not go back and am now without status. My brother became a U. S. citizen in 2014 and sponsored both my father and mother, who came in 2015 with green cards. Neither my brother nor my parents have started sponsoring me. I read about the new I-601A waiver in which the hardship could be through a permanent resident parent. Can I apply now?

Dear reader,

I assume that you are unmarried since a permanent resident parent can only sponsor an unmarried son or daughter. That being said, it would appear that you might be eligible under the expanded program. However, in looking at the September 2016 visa bulletin of the Department of State, a petition by your parents for you under the F-2B category for unmarried sons or daughters over the age of 21 would take approximately 6-8 years as the availability date is only up to those who filed prior to 2/1/10. A petition by your brother for you under the F-4 category for siblings of U. S. citizens would take approximately 14 years as the current availability date is only up to those who filed by 10/8/03 for natives of Taiwan. You should explore the option of PERM labor certification and green card through an employer that needs your education and experience. That would be a much faster case taking approximately 1 ½-2 years since you are born in Taiwan. The September visa bulletin shows immigrant visa availability up to those who filed labor certification applications by 2/1/14 under the EB-2 category for those with advanced degrees (visa availability is expected to jump in this category in October) and 5/1/16 under the EB-3 category for skilled workers or professionals.

Q&A 3

Eligible for Expanded Program with LPR Motherís 2012 and USC Brotherís 2005 Petitions?

Am I eligible for new I-601A? I came to the U. S. with a B-2 visa in 2002, changed status to F-1 student and H-1B, but lost my job in 2009 and have been here illegal ever since. I am single and my mother is a permanent resident who applied for me in 2012. My brother is a U. S. citizen who applied for me in 2005. I have no history of deportation or criminal problems.

Dear reader,

Under the I-601A expansion rule, it would appear that you are eligible to apply. However, you will have to wait for the priority dates on either petition to become more current before you can submit an I-601A waiver application based upon extreme hardship to your mother. An I-601A can only be submitted when you have paid the filing fee of the immigrant visa with the National Visa Center (NVC). The NVC will only begin working on a case when the “date for filing” as seen on the monthly visa chart of the State Department has been reached. This is as opposed to the “final action date” when an immigrant visa can be approved. For the month of September 2016, the F-2B category for single sons or daughters over the age of 21 of permanent residents has a date of 2/8/11 for “dates of filing” (all countries except Mexico and the Philippines), and the F-4 category for brothers and sisters of U. S. citizens is up to 6/15/04 for” dates of filing” (all countries except India, Mexico in the Philippines). I assume that you will have to wait 1-2 years for either petition to be reached under the “date for filing” chart.


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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