Q&A’s published on Lawyers.com and the Epoch Times on November 9, 2018 1. Does My Boyfriend Need a Fiancé Visa If He Has a 10-year Tourist Visa? 2. C-1D Illegal Immigrant Wants to Apply Any Visa 3. G-1 Visa to B-1 Visa

1. Does My Boyfriend Need a Fiancé Visa If He Has a 10-year Tourist Visa?

My boyfriend and I have known each other since April 2016. He came to visit his best friend in the states in January 2018 and we met. We started dating. He stayed for three weeks. Went back to Jerusalem and he came back to visit me after 30 days. The second time he stayed for two months. He left in April. Then he visited me again in June and stayed for 3 months. He left on September 9th. He has a 10 year tourist visa. From my understanding he can only stay here 6 months total out of the calendar year. Do we have to get a fiancé visa for him to come back so we can get married? Or is it okay if he comes back in a few months and we get married and adjust status. What is the best option?

Mr. Lee answers:
A visitor to the US makes an assertion that he or she only plans to stay here for a visit and then go back to the home country. An individual intent upon marrying when coming to the States is best advised to obtain a K-1 fiancée visa. U.S.C.I.S. discourages individuals from using the tourist visa to get married and adjust status in the US as that is an abuse of the visa.

2. C-1D Illegal Immigrant Wants to Apply Any Visa

I was an illegal immigrant who stayed with C-1d Visa in the USA from Sep 2009-May 2014. I am now in India for the past 4.5 years. Can I apply to USA anytime soon for any visas?

Mr. Lee answers:
If you were in the US under a C-1/D visa for the period of time that you state, you would be barred from reentering the US for 10 years from May 2014. If you have good reason to return to the US on a temporary basis and are eligible for a non-immigrant visa, the US consulate or embassy may allow you to apply for a temporary waiver of the 10 year bar. (If a Canadian citizen, such an application would be made to U.S. Customs and Border Protection). The request for waiver would then be forwarded to The Admissibility Review Office of U.S.C.I.S. which would make the final decision on whether to grant you a waiver. Additionally if you have a basis to immigrate and are at the immigrant visa interview stage, you might be able to seek a waiver of the 10 year bar if you have a spouse or parent who is a US citizen or permanent resident and would experience extreme hardship if the waiver was not granted. The request for waiver would be made to U.S.C.I.S.’s lockbox in Phoenix Arizona, and the expected time to decision would be approximately 12-16 months.

3. G-1 Visa to B-1 Visa

I’m actually on a G-1 visa (my father works in an international organization).  He retired and will no longer be on that status. I would like to change my status. And I’m looking for a college to apply for an LLM/JD program for the January 2019 semester. I wanted to know what I should write on my letter explaining the reasons why I would like to change the status. 

Mr. Lee answers:
B-1 is a business visa and not appropriate in your case. A common reason which individuals in your situation of dependent whose status is ending give is to spend more time taking care of arrangements before having to leave the country.

 

Article “The Dwindling Migrant Caravan Marches On As Trump Glowers And Threatens”

As published in the Immigration Daily on November 6, 2018.

In our article last week, ” Why the Migrant Caravan of 7000 (Whoops! 5000) Is Not Concerning ,” we laid out hypothetical numbers that even if 4000 came in, only approximately 668 would be left at the end of six months under the Trump no-tolerance policy, and asked what was the crisis. This week we have more statistics on this Trump-made crisis from the military itself which on October 27th made an estimate that only 20% of the 7000 would even reach the border. That would mean only 1400, and under the no-tolerance policy in which only 16.7% of the previous migrant caravan were left in the US after six months, only approximately 234 would remain after that time. So again, what crisis? Currently the caravan is still about 500 miles away from the border and already down to about 3500. Over 3000 have already applied for asylum in Mexico and many others have gone home. The migrants are now strung out between the city of Córdoba in Veracruz and Mexico City, and the remnants are not expected to arrive for at least 2 weeks traveling between 20-30 miles per day. Such would also be the fate of 2 smaller caravans of 1000-1500 just entering Mexico.

Yet in the face of the dwindling numbers, Mr. Trump continues to pour on the rhetoric saying that he would send up to 15,000 troops to the border. At that rate, there would be more than 10 soldiers to greet each of the 1400 who finally made it to the nearest point on the Southwest border. How long would he keep our troops there? A 6000 troop deployment in the Bush administration between 2006-2008 cost the American taxpayers $1.2 billion. A conservative estimate of the cost of deployment from now to December 31st is $200 million. While the numbers are mind-numbing, $200 million recently supported more than 13,000 transitional housing beds for homeless veterans under the VA’s grant and per diem program. $200 million was also the funding amount by the Federal Railroad Administration for 28 projects in 15 states to implement positive train control (PTC) systems to automatically brake or slow down speeding trains.

In addition to the number of troops at the border, Mr. Trump’s call to arms has resonated with militia groups, who are preparing to mobilize to the border to defend against the migrants and further increasing the chances of confrontation and innocent lives being lost. The Trump vitriol has also not been lost on the Border Patrol, which feels more free to use intimidation, substandard conditions of confinement and violence in dealing with migrants on the border than at any time during the Obama years.

To the idea that migrants might throw rocks at the American troops, Mr. Trump initially said that if US troops faced rock-throwing migrants, they should react as though the rocks were “rifles.” The Nigerian Army used his words last week as justification for its estimated killing of more than 40 people and wounding of 100 by rock-throwing protester by posting the Trump video including his words, “They want to throw rocks at our military, our military fights back.” On November 2d, Mr. Trump reluctantly took back the words saying that migrants would not be shot if they threw rocks. However, the tone has been set.

Words are dangerous, especially coming from the leader of the most powerful country in the world. Yet Mr. Trump and his Republican Party seemingly have no regard for the truth or for the consequences of their lies. The Washington Post estimated that President Trump has made 6,420 false or misleading claims since he took office through October 30, 2018. Mr. Trump has been responsible for inflaming and encouraging the actions of all of the fringe right, including neo-Nazis, white nationalists, white supremacists, anti-Semites, Holocaust deniers, conspiracy theorists, and the Ku Klux Klan. His party is terrified of offending him and his base for fear that congressmen and senators running for election will be turned out of office. The actions of Mr. Trump and the inaction or collusion of the Republican leaders in not repudiating him are responsible for what happened in Charlottesville, the synagogue attack in Pittsburgh 10 days ago, and mailing of 15 pipe bombs to prominent Democrats including ex-presidents Obama and Clinton by an ardent Trump supporter. Mr. Trump’s foreign-policy record of divisiveness is no better in driving away long time allies and cozying up to some of the worst leaders in the world. His actions have unilaterally made the world less safe, and unleashed the worst acts of foreign leaders who believe that there will be no consequences or material rebuke from America.

Is there no further reason to get out and vote tomorrow for an entire Democratic slate? The old measure of trying to figure out whether this candidate is a little bit better than that candidate no longer applies in this fractured country with an abomination of a president holding his party in pocket.

Q&A’s published on Lawyers.com and the Epoch Times on November 2, 2018 1. I Am From India and I Am Living and Working As Caregiver Since 6 Years in Israel. I Want to Visit to USA for Meet My Younger Brother. 2. Can F2 Visa Holder Start a Partnership Company As An Investor? 3. I’m On the Process of Getting a Divorce From My Spouse Who Has a Conditional Visa For 2 Years

1. I Am From India and I Am Living and Working As Caregiver Since 6 Years in Israel. I Want to Visit to USA for Meet My Younger Brother.

Mr. Lee answers:
If you have been living and working as a caretaker in Israel for six years, you could apply for a B-2 visiting visa from Tel Aviv or the American Embassy consulate in Jerusalem. Visitors visas are given in the discretion of American consular officers and you would have the burden of proof that you do not intend to remain in the US past the time that you are requesting for visiting in the States. The fact that you are a third country national in Israel will be taken into account, but also the fact that you have spent the last six years in the country. Your brother’s presence in the US would be taken as a negative factor if he did not hold legal status. If holding legal status, that would be a good factor as he could also guarantee financial support if capable. Even if he is a US citizen, the fact that he could also sponsor you for permanent residence is not much of a factor since the waiting time (now approximately 13 years) is so long as to almost negate any semblance of immigrant intent.

2. Can F2 Visa Holder Start a Partnership Company As An Investor?

My wife is currently holding F2 visa. We have already filed I-526 petition for our EB-5 program. Her friend who is a green card holder likes to start a partnership company with my wife. To establish the company, my wife’s SSN and ITIN are required. (She had a job during her OPT so she has ITIN). My wife will be a passive investor/owner without operating company and drawing income. Is there any violation which would sabotage our I526 petition or even future I-829 petition? Is there anything else we should pay attention?

Mr. Lee answers:
As long as your wife is a passive investor, there is nothing in the law that prevents your wife from establishing a company in partnership with anyone else. Such an act does not constitute unauthorized employment.

3. I’m On the Process of Getting a Divorce From My Spouse Who Has a Conditional Visa For 2 Years

He wants to use our daughter to have his conditional visa removed. His lawyer is saying that if he has a shared legal custody, he will be able to have his green card. But I don’t want that. He doesn’t care about our daughter when we are still together and all of a sudden, he cares so dang much. I feel like he is using our daughter to only get his green card. He always talk about how soon he can get his permanent card and now I realized that he was all about that.

Mr. Lee answers:
It would be fairly difficult for U.S.C.I.S. to deny your spouse’s removal of the conditional basis of his residence status since you have a common child. U.S.C.I.S. is mainly concerned with whether there was a bona fide marriage and not one done for favor or profit. A child together is strong evidence of a bona fide marriage.

 

Article “Why The Migrant Caravan of 7000 (Whoops! 5000) Is Not Concerning?”

As published in the Immigration Daily on October 26, 2018.

In the ever shrinking caravan of 7000 – now reportedly 5000 as many seek asylum in Mexico – ask yourself – would President Trump be concerned or would he put out the welcome wagon if this was a caravan of 7000 Norwegians rather than Hondurans, Guatemalans, and Mexicans? An honest answer would inform you that the concern is less with the numbers than with the color of the skins. Even if over half of them arrived at the US-Mexican border, what number would be allowed to remain here in 6 months under the Trump no tolerance policy? CBS reported that a study of the caravan of 1500 Central American migrants that reached the border in April 2018 revealed that only about 250 legally remain in the US pending immigration hearings and only three have been granted asylum. Extrapolating the figures means that only 16.7% are left, and so if 4000 wound up at the border this time seeking asylum, only 668 would be left here at the end of six months. So, what crisis?

The rush to deny people of darker skins entry into the country regardless of their plight is endemic to this administration, with President Trump attempting earlier this week to tar their images as suffering people by baselessly spouting that people from Middle East had joined the group, implying that they had intentions to commit terrorism, only to later give a grudging retraction that “There is no proof of anything, but there could very well be.”

It is generally a given that those who seek to enter the country illegally or take part in a long march like the one here are the younger people who have drive and endurance – the type of people who should be prized for their many future years of physical ability to build a country’s economy. The United States is at the crossroads of either continuing to be a great nation by accepting immigrants or becoming a second-class power through a declining workforce. The largest generation of US workers, the 76 million strong baby boomers, began to reach age 62 in 2008 and the youngest will reach 67 in 2031. By that time, Americans aged 65 and older are projected to be 75 million. At the same time, birth rates of American women have dipped to a 30 year low in which the fertility rate has sunk further below the replacement level. According to a report from the Centers for Disease Control, the rate has generally been below replacement since 1971. Who then will be on the bottom of the Social Security pyramid to support the retirees’ Social Security benefits? Who then will be in the labor force that drives the industry in this country? The Pew Research Center states that immigrants will play the primary role in the future growth of the working age population. Without immigration and the undocumented immigrants already in this country, the US may well become an aged population like Japan suffering from decades of stagnation, a cruel fate that China is attempting to stave off at present.

History is the ultimate arbiter, more reliable than the words coming from politicians’ mouths or any “fake facts.” At the end, it will honor a figure like the German Chancellor Angela Merkel who saw an aging German population and infused it with the new blood of refugees. It will dismiss President Trump as a figure who failed to put the good of the country before his narrow divisive views.

Published on the World Journal Weekly on October 21, 2018 1. Came to U. S. As a Student, Have Stopped Studying, And Ask if I Can Apply for Political Asylum Based on My Experiences in China?

1. Came to U. S. As a Student, Have Stopped Studying, And Ask if I Can Apply for Political Asylum Based on My Experiences in China?

I came to the U. S. to study film at a college in California. Because of economic problems with my sponsor, I had to quit my schooling in May 2018. I just got a letter from the school telling me that I am out of status, and will have to leave the U. S. or ask for reinstatement. At this time, can I apply for political asylum based on my background in China in which I was a photographer for a city newspaper, took photographs of people in protest against government corruption which were published, and because of that was beaten and arrested by the local police? I was detained for a week but not charged.

Dear reader,
The U. S. grants political asylum based upon past persecution or well-founded fear of persecution based upon race, religion, nationality, social group, or political opinion. In your case, the reason for which you took the photographs of protest may determine whether your case falls within “political opinion.” If you had no motivation for taking the pictures other than to earn money as a photographer, then you might not qualify. Otherwise it would appear that your case has merit. Whether it can be approved on the basis of past persecution depends upon the severity of the beating and imprisonment. Because of the fact that it has been 3-4 months since you quit your studies, I suggest that (if you are qualified based on the above) you apply as quickly as possible. For persons who held legal status in the States, U.S.C.I.S. expects an asylum application to be filed within a “reasonable period of time” after the ending of the status. 6 months is considered the outward limit of reasonableness with some immigration officers believing that 6 months is already too late, and so we believe that the earlier the better in your case.

Q&A’s published on Lawyers.com and the Epoch Times – 10/19/2018 1. What Are the Steps to Legalize My Spouse? 2. What Is The Best Option for a Legal Permanent Resident to Get the Spouse From a Foreign Country? 3. Which Eligibility Category Exactly Am I Under If My Visa Expired and Then I Got Married While Being Out of Status?

1. What Are the Steps to Legalize My Spouse?

I am a US citizen and my husband is here illegally and did not enter with visa.  We have a two month old baby together.  He has no criminal background not even a citation and has paid his taxes every year and has worked with his legal name.  What are the steps I need to take for him to become a US resident? Is it possible for me to apply by myself for him? Due to economic reason, I cannot pay a lawyer.  

Mr. Lee answers:
If your husband entered the US on a parole status instead of a visa, you could possible work to adjust his status to permanent residence n the US without leaving.  The major forms that you would be dealing with would be the I-130 relative petition and the I-485 adjustment of status application.  If he entered the country illegally without being paroled, does not qualify under section 245(i) as having been the beneficiary of a labor certification application or immigrant visa petition by April 30, 2001 and being physically present in the US on December 21, 2000, you may think of processing under the I-601A program which allows an advance waiver of the penalty for being illegal in the US for a period of time.  The relevant forms for that would be the I-130 relative petition, and after that is approved, the I-601A application form for a provisional waiver.  If approved, your husband would ultimately complete his case at the American consulate or embassy in his home country, but if everything else is okay, he would be allowed to come back with an immigrant visa right after the interview.  For further information you can check out the USCIS website at uscis.gov.

2. What Is The Best Option for a Legal Permanent Resident to Get the Spouse From a Foreign Country?

Other than petition, what would be the fastest and easiest way for an LPR to get the spouse from foreign country, Philippines and how long will it take?

Mr. Lee answers
The best way would be for the LPR to become a US citizen and to petition under that category. Failing that, some other options could be through the immigration investor EB-5 program if your spouse has the wherewithal to invest, or he might qualify for a working category with dual intent such as H-1B specialized worker or L-1 intracompany transferee. Also if your spouse is an extraordinary alien in a specific field, he may be able to qualify under an O-1 nonimmigrant visa or EB-1A immigrant visa.

3. Which Eligibility Category Exactly Am I Under If My Visa Expired and Then I Got Married While Being Out of Status?

Mr. Lee answers:
You are illegal when your visa status expires. If you are married to an undocumented immigrant or green card holder, your status would still be illegal. In the event that you marry a US citizen, and you file for an I-485 adjustment of status application, you would be in a U.S.C.I.S. state of grace while the adjudication is ongoing.

 

ALAN LEE, ESQ. SELECTED AS SUPER LAWYER FOR 2018 IN NEW YORK CITY

The annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., has again been chosen as a Super Lawyer for New York City in 2018. He is one of only 2 lawyers of Chinese descent in the 64 attorneys selected for the area of immigration law. This is the seventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2017.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers list for Immigration 2018“.

Published on the World Journal Weekly on October 7, 2018 1. H-1B or L-1 and Then Green Card? 2. I-601A

1. H-1B or L-1 and Then Green Card?

I have a 3 year degree in accounting, and have been the accounting controller in our family business in Taiwan (35 people in company and $3 million USD in sales) and want to be in the U. S. under H-1B or L-1 status with the ultimate goal of getting the green card. The company has a subsidiary in Canada with 10 employees and will start up a new company in the U. S. with me at the helm, initial capitalization of $100,000, and the initial plan in the first year is for the company to have 3 people including myself and U. S. sales of $750,000. What is the best approach?

Dear reader,
H-1B visas for private companies are capped in number and applications are only accepted at the beginning of April. The employment would have to be for a specialty occupation. A good time to start the case is in January.  2 possible problems are that you do not have a four-year baccalaureate degree in accounting and that the new company that you are starting would seem to be quite small to have the need for an accounting professional or manager. A startup L-1 is possibly a better option, but would have to include a solid business plan as to how the company plans to expand within the next year. Assuming that the visa is approved, U.S.C.I.S. would only give a period of one year, and the U. S. company would have to apply for an extension of your status by showing its growth after the first year. Assuming that it grows well, it could then sponsor you for permanent residence under the EB-1C multinational executive or manager category if you were transferred to the U. S. in an executive or managerial capacity. This is a fairly quick route to immigration and can usually be accomplished within 1-2 years after the EB-1C application is submitted. Please note that if the company does not grow, U.S.C.I.S. may have problems in granting you an extension for permanent residence. If you and your Taiwan company see possible problems with growing a small company in the U. S., you may wish to rethink your plans and attempt to acquire an existing company with employees and sales. Such could pave the way for easier entry under both L-1 and green card.

2. I-601A

I sneaked into the United States in 1995, applied for political asylum in 1996, lost and was ordered deported in 1998. My mother came to the U. S. in 2006, applied for me in January 2007, and became a U. S. citizen in 2010. I got married in 2016, my wife has the green card, and we have 3 children – 3, 4, and 7 years old. She has tried twice to become a citizen, but cannot pass the English test. How can I get my green card?

Dear reader,
Under the expansion to the I-601A program, you may be able to ultimately immigrate to the U. S. For you to do that, you can probably use your mother’s petition for you as the base. For the month of June 2018, the available date for the F-3 category of married sons and daughters of U. S. citizens is up to 3/15/06, and so the time for visa availability is probably between 1-2 years. In the meantime, you can file an I-212 conditional application for permission to reapply for admission into the U. S. after deportation or removal with the local U.S.C.I.S. field office. Such application would look at your immigration record, any criminal record, and all of your equities. Assuming that such is approved, you would then file for an I-601A application for provisional unlawful presence waiver with U.S.C.I.S. in which the standard for adjudication is whether there would be extreme hardship to a U. S. citizen or permanent resident spouse or parent if the waiver was not approved. If both the I-212 and I-601A applications are approved, you could then complete consular processing and return overseas to the home consulate or embassy, where you would likely have a normal immigrant visa interview and be able to return to the U. S. with an immigrant visa.

Article “Brett Kavanaugh v. Christine Blasey Ford – Who Can You Believe?”

As published in the Immigration Daily on October 4, 2018.

 

With headlines blazing in The New York Times on September 28, 2018, “With what degree of certainty do you believe Brett Kavanaugh assaulted you? “100 percent” above the picture of Christine Blasey Ford, and “None of these allegations are true?” “Correct.” “No doubt in your mind?” “Zero. I’m 100 percent certain” above a picture of a defiant Brett Kavanaugh, who can you believe? Mr. Trump threw in his two cents in calling Ms. Ford’s testimony “credible” and Judge Kavanaugh’s “incredible.”

Does it matter to the Republican Party whether Dr. Blasey is telling the truth? Probably not to the vast majority. But in a closely divided 51-49 enate, a new call from Republican senators Jeff Flake (R-AZ), Lisa Murkowski (R-AK), and Susan Collins (R-ME) on the 28th for a limited FBI investigation forced the Republican leadership to accede to a limited investigation of the accusations of sexual misconduct against the young Judge Kavanaugh. The order to the FBI by Mr. Trump afterwards was highly restrictive that the “supplemental” investigation “must be limited in scope and completed in less than a week.” After heavy criticism, Mr. Trump said on October 1st that the FBI “should interview anybody that they want within reason.” So far, however, it appears that as of Wednesday, October 3d, many potential relevant witnesses had not been interviewed, and Republicans were pressing for a vote on confirmation by the end of the week based on word from the FBI that it could finish its investigation by Wednesday.

The Republican strategy of not assailing Dr. Blasey as the Senate committee did Anita Hill in 1991 with all male questioning, and attempting to find an alternate ground of mistaken identity on the part of Dr. Blasey brings to mind the passage in Pride and Prejudice (pity those who have not read it or seen one of its multiple screen versions) in which sisters Elizabeth and Jane Bennet discuss Elizabeth’s new found information concerning George Wickham’s perfidious deeds:

What a stroke was this for poor Jane !  Most earnestly did she labour to prove the probability of error, and seek to clear one without involving the other.

“This will not do,” said Elizabeth . “You never will be able to make both of them good for any thing. Take your choice, but you must be satisfied with only one.

Here we must certainly be satisfied with only one, and the evidence points to Dr. Blasey. From all accounts, she has led a respectable life since birth and even passed a polygraph test administered by an ex-FBI agent. Judge Kavanaugh has indeed led a respectable life after graduating from Yale University, but many reports indicate that he led a life of heavy drinking and partying at his Catholic prep school in Georgetown and at Yale. It may well be that he forgot about the episodes of which he is now accused because of the heavy fog of alcohol. Thus he could be telling the truth in his own mind. Yet that should not do for a person aiming to be confirmed to the highest court in the land. Possibly the fact that he was a jock, good in sports and captain of his high school basketball team, persuaded him that he could take more liberties than the normal high school and college student, and any restraints were further lowered by his prodigious alcohol intake. His bland testimony that “I did not drink beer to the point of blacking out” stands in stark contrast to a number of statements by his classmates, one of whom said “I definitely saw him on multiple occasions stumbling drunk where he could not have rational control over his actions or clear recollection of them,” and another that he was “frequently, incoherently drunk,” and that when he was, he became “aggressive and belligerent.” Most of us who drank in college saw the difference in people who drank, some of whom just became happier and others mean drunks.

Given the above, the least that should happen in an FBI investigation no matter how limited in time and scope should be interviewing or attempting to interview all people from high school and college days who might be able to shed light on the actions or inactions of Mr. Kavanaugh and Ms. Blasey. Such an investigation should also canvass the further sexual allegations against Judge Kavanaugh by Deborah Ramirez, a fellow classmate at Yale, and Julie Swetnick. It should be noted that even if Ms. Swetnick could not identify him as one of the sexual assaulters, it should be disqualifying for confirmation if her assertion that he was there is to be believed as it appears that he did nothing to stop the episodes from occurring.

Other than the character issues, the stakes are high in the confirmation process as Judge Kavanaugh has demonstrated a conservative bent that would shift the court to the right for many years if confirmed. His record on matters relating to immigration is short, but discouraging to those who believe in immigrant rights. As pointed out by the American Immigration Council in its September 5, 2018 article, “Brett Kavanaugh’s Record on Immigration Raises Questions,” he has dissented in 3 cases stating his belief that the immigrant should have lost – in Agri-Processing Co. v. National Labor Relations Board in 2008, he said that undocumented immigrants should not be entitled to labor law protections because they were not legally permitted to be employees; in Fogo de Chao Holdings v. U. S. Department Of Homeland Security in 2014, he suggested that hiring Brazilian chefs under L-1 specialized knowledge visas was the restaurant just trying to cut labor costs masquerading as specialized knowledge; and in Garza v. Hargan in 2017, he accused the majority of a radical expansion of the law and that the DC circuit court had created a new right for unlawful immigrant minors in U. S. government detention to obtain immediate abortion on demand.

Published on the World Journal Weekly on September 30, 2018 1. U. S. Citizen with Overseas Business Wants to Sponsor Mother for Permanent Residence – Problems? 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? 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? 4. Problem with the In-laws and We Got Divorced – Can I Still Get My Permanent Green Card?

1. 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.

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.

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.

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.