Published on the World Journal Weekly on September 30, 2018

Q&A 1 2 3

U. S. Citizen with Overseas Business Wants to Sponsor Mother for Permanent Residence – Problems?


I became a U. S. citizen in 1996 and have spent most of the last 10 years in Taiwan conducting a successful professional business. My mother (80 years old) now wants to immigrate to the U. S. to join my brother and sister. Our father passed away 5 years ago. My brother and sister only have green cards, and so I would have to be the one to petition. Can I do that without problems?
Dear reader,
There are no confines on the length of time that a U. S. citizen can be outside the United States. That being said, the immigration laws do require that you demonstrate domicile in the U. S. at the time that your mother will be interviewing for permanent residence. The demonstration of domicile is one of the requirements of the I-864 affidavit of support form that you would have to fill out. In discussing the notion of domicile, the State Department believes that the I-864 can be accepted if the petitioner satisfies the Department of State officer by a preponderance of the evidence that he or she will establish a domicile in the U. S. on or before the date of the intending immigrant’s admission and the Foreign Affairs Manual (FAM) gives examples such as opening a U. S. bank account, transferring funds to the U. S., making investments in the U. S., seeking employment in the U. S., registering children in U. S. schools, and voting in a U. S. election.

Q&A 2

Just Got Green Card From Marriage, Want to Sponsor 20-year-old Son in U. S., But Any Problems With His F-1 Visa?

I married a U. S. citizen who applied for me and I just got my conditional green card. My son was over the age of 18 at the time that we got married, and so he could not be included. He is 20 years old, and studying in the U. S. at Princeton University. He is afraid that if I file the petition for him, he will have a problem in traveling in and out of the U. S. in the future. Is that true? If so, what can we do? His visa is good until 2019.

Dear reader,

An F-1 student should have nonimmigrant intent, and the filing of an I-130 petition can be taken as an indication that your son does not have that requisite intent. At the present time, he could likely travel in and out easily until the expiration of the visa even if you file an immigrant petition for him. The difficulty may come up if he decides that he wishes to renew the visa in 2019 (please note that he does not necessarily have to have the visa renewed to remain legally in the U. S as the visa only controls travel in and out of the States and he is legal as long as he maintains a valid I-20 and keeps up his full-time schooling). At that point, he would have to disclose that an immigrant visa petition has already been filed on his behalf. Depending on the consular officer, he or she may or may not issue the visa. Arguments on the side of issuance are that your petition for him would take a number of years before your son could immigrate and that your son’s studies would end long before the immigrant visa is available. If you decide to do that, the I-130 petition should be marked for consular processing instead of for adjustment of status to emphasize that point. Another alternative is that you can leave it to your son to find another way to immigrate in the future as many F-1 students ultimately remain in the States through employment immigration or marriage. The difficulty there is that a failure by your son to find a sponsoring employer or life partner can ultimately waste more years during which his immigration petition through you could be moving forward. So unfortunately, there is no bright line choice, and you and he will both have to assess the possible risks and rewards of your future actions.


Q&A 3

Came as K-1 Fiancé, Did not Marry, Now Married to Another U. S. Citizen with 2 Children – Can I Adjust Status to Permanent Residence Through My Wife’s Petition?

I entered the U. S. in 2002 under a K-1 fiancé visa, stayed with her and her family for about 6 months, but we never married like we were supposed to. We had arguments and she always threatened to send me back. We split up after 6 months, and I got into a relationship with someone else in 2010, got married in 2011, and we have 2 children ages 5 and 6. Can my wife do something for me to adjust my status to permanent residence since we have a marriage they can be proven as real?

Dear reader,

The law does not allow adjustment of status where an individual entered the U. S. under a K-1 and never married the petitioner. Your wife could apply for an I-130 Petition for Alien Relative for you, have that approved, and you could return to your home country for an immigrant visa interview with 2 obstacles – you would have to convince the American consular officer that you did not engage in fraud or misrepresentation when you entered the country under the K-1 visa, and you would have to ultimately file an I-601 waiver application for the ground of excludability of being in the country unlawfully for a year which carries a 10 year bar. If the waiver is approved, you would be able to return as a permanent resident.  Assuming that all goes well, please note that the period of time that you would be outside the U. S. would be approximately 9 months-one year.  Alternatively, you could do nothing and if caught by ICE, you could apply for cancellation of removal (the 10 year green card) before the immigration court. You would have to prove 10 years residence in the U. S., good moral character, and that your removal would cause exceptional and extremely unusual hardship to your wife and children. Please note that cancellation of removal is only available when you are before the immigration court, and is not an application that you can give to U.S.C.I.S.  Because of the difficulty of having cases placed in proceedings affirmatively before the immigration court, some lawyers and consultants have resorted to filing political asylum applications with or without the knowledge of their immigrant clients to get their cases for cancellation of removal before the court, a practice frowned upon especially where the asylum case has little merit.


Q&A 4

Problem with the In-laws and We Got Divorced – Can I Still Get My Permanent Green Card?

I came into the country in 2014 as an F-1 student, maintained my status, and married my husband in 2016. We applied for my green card and I got a conditional green card in January 2017. We were living in Ohio since we both went to school at the same university there, but after graduation in June for both of us, he wanted us to move back to California to be with his parents. His parents and me do not get along, and so my husband and I argued a lot, and got divorced in November 2017. I have kept all of our documents. Can I still get a permanent green card at this time?

Dear reader,

The law allows conditional permanent residents to obtain permanent status if they are able to prove that they had a bona fide marriage at the inception. In your case, you say that you have kept all of the documents, and that would be very much of a help to prove that you did have a bona fide marriage. As you are now divorced, you do not have to wait to file within the 90 days before the 2nd anniversary of your obtaining conditional residence. If you wish, you can file for removal of the conditions on your residence status (form I-751) at this time with all proof of the bona fide relationship.


Copyright © 2003-2018 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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