Q&A’s published on the World Journal Weekly on February 28, 2021 1. I filed I-539 extension for B2 visa on time, but so far I had only the 13 digits receipt. Should I leave? 2. My Son (Visa Waiver) in the US, (not married, 33 years old) , I am Permanent Resident Card holder Mom, may I process the I-130 and I-485 together? He is overstayed. 3. Reduced misdemeanor charge speeding 4. I applied I-130 form for my sister.  Can she apply the form I-485 also? 5. My husband owes child support. Will it affect my immigration petition?

1. I filed I-539 extension for B2 visa on time, but so far I had only the 13 digits receipt. Should I leave?

I filed I-539 extension application with B2 Visa on time, but I have not received any result; I only have the receipt notice. My worry is that the 180 days (I read this from a USCIS site) allowable days for me to stay supposedly after filing extension supposing it is approved has lapsed. Should I leave the US?

Mr. Lee answers:

An applicant for timely B-2 extension is entitled to remain in the US to await the results of the decision, but your better action if you were going to stay past the time that you earlier requested would have been to apply for another extension. If USCIS approves the extension request (six months is the maximum extension time), that will be over the time from April 2, and you will begin to accrue unlawful presence as soon as the decision is made. Whether you stay or leave at this time is your decision, but USCIS would likely prefer for you to leave if you did not file another extension request or other application to attempt to maintain your nonimmigrant status.

2. My Son (Visa Waiver) in the US, (not married, 33 years old) , I am Permanent Resident Card holder Mom, may I process the I-130 and I-485 together? He is overstayed.

It is a just a thinking situation : if my son comes with Visa Waiver to the US and he will overstay. May I file for him I-130 and I-485 together and can he stay under the process in here in the US ( I am a green card holder Mom)?  If not, maybe he will come to the US (with Visa Waiver), and under the visiting time I will file the I-130 and I-485, is it will work? Or other way, if the GC holder applies for the son, who is abroad, under the process, he may come to the US or must wait 7-13 years without visiting his mother?

Mr. Lee answers:

As a permanent resident filing for a 33-year-old single son, he is in the F-2B category which in the month of January 2021 only has filing date availability for those who filed prior to 5/1/16 for all of the world except for further backlogged countries Mexico and the Philippines. Adjustment of status (I-485) is only allowed where there is visa availability. Your idea of having your son adjust status when he enters will not be allowed because of the long period of time that he must wait before his quota becomes current. Insofar as visiting you is concerned during the time of waiting, he is allowed to do so as long as he is able to convince immigration inspectors at the port of entry that he intends to return within the 90 day period allowed on visits under the visa waiver program. He should space out any visits so that DHS can see that he spends much more time in his home country than the United States. 

3. Reduced misdemeanor charge speeding

I do have a misdemeanor charge of speeding in Virginia (2019) and the judge asked me to do driving school and 12 hours community service and charge reduced to infraction of simple speeding I paid the fine. How it will affect the N-400 application. I had 4 driving tickets 1- The number plate is not visible – Fine paid. 2- Careless driving – Fine paid in 2017. 3- Not obey the sign -2018- Fine paid. 4- Children are not wearing a belt- Fine paid 2019.

Mr. Lee answers:

Offenses against the law are important in naturalization cases since applicants must prove good moral character for the length of time required following the green card to file the N-400 application. Generally, traffic offenses should not prevent individuals from obtaining naturalization if the applicants are qualified in all other respects. The fact that you have four traffic offenses may be looked at more carefully, but I believe that four over a period of three years can probably be overlooked.

4. I applied I-130 form for my sister.  Can she apply the form I-485 also?

I am a U.S. citizen and filed I-130 for my biological sister.

Mr. Lee answers:

The F-4 category for siblings of US citizens is presently available for filing forms I-485 only to those filed I-130 petitions before 9/15/07 (dates for filing chart) except for further backlogged countries India, Mexico, and the Philippines. Because there is no visa availability, an I-485 cannot be filed. The US does not allow individuals to file I-485 applications and then wait until the priority date is current. Sorry. 

5. My husband owes child support. Will it affect my immigration petition?

My husband has outstanding child support on New York. He’s filing an immigration petition for me. Will this affect me? If so, how can he be rectified or to pay outstanding amounts? How can it be rectified?

Mr. Lee answers:

If your husband has outstanding child support obligations, he should either pay the amount owing on child support, or if unable to do so, make a schedule with the child’s mother for the outstanding balance over time. Your husband’s inability to pay child support casts doubt upon his ability to support you under the I-864 affidavit of support, a requirement in your immigration case.


As published in the Immigration Daily on February 22, 2021

The Biden Administration’s big immigration bill, “The US Citizenship Act”, sent to Congress on February 18, 2021, is expected to draw opposition and faces an uphill climb. In what form it will emerge from Congress if it does remains to be seen. This article will only discuss one part of the bill – the provisions for the undocumented including those with final orders of removal or deportation to apply for status as “Lawful Prospective Immigrants”.

Generally, applicants must be physically present in the US on January 1, 2021, and maintain continuous physical presence from that date until the application is approved although absences of less than 180 days during a calendar year are not to be considered violations of the residence requirement if the absences are brief, casual, and innocent, whether or not the absences are authorized by DHS. Ineligibility grounds are confined to criminal, security, human smuggling, ineligibility for citizenship, child abducting and unlawful voting bars. Deportation or removal orders are not a bar; neither is the two-year home residence requirement restriction for some J-1 visa holders.

Most criminal acts as well as human smuggling, ineligibility for citizenship, child abduction and unlawful voting are waivable.

On crimes, felonies can bar, but state laws classifying offenses as felonies for which an essential element is the individual’s immigration status are not applicable. Most felonies, except for aggravated felonies can be waived except that multiple barring crimes involving moral turpitude can only be waived if the noncitizen has not been convicted of any offense during the 10 year period prior to the application for lawful prospective immigration.

Misdemeanors can also bar, but it takes three or more, and not counted are simple possession of marijuana or marijuana related paraphernalia, any offense regarding marijuana or marijuana related paraphernalia no longer prosecutable in the state of conviction, any offense for which an essential element is the individual’s immigration status, any offense involving civil disobedience without violence, and any minor traffic ticket. A further limiting factor on misdemeanors is that there can be no multiple counting of misdemeanors occurring on the same date and arising from the same act, omission, or scheme of misconduct. Waivers can also be given for misdemeanors on a scale of waiving one if there were no offenses within five years of application, and waiving two if there were no offenses within 10 years of application.

Waiver criteria do not primarily depend upon having qualifying relatives in the country. Humanitarian purposes, family unity, or public interest are to govern waiver decisions. DHS is to consider all mitigating and aggravating factors including severity of the underlying circumstances, conduct, or violation; the length of the individual’s residence in the US; evidence of rehabilitation if applicable; and the extent to which the individual’s removal or denial of application would adversely affect the individual or the individual’s US citizen or lawful permanent resident family members.

Persons who are out of the country having been deported during the Trump Administration beginning on January 20, 2017, can be given a waiver of deportation or removal and the requirement to be physically present in the US on January 1, 2021, and apply for the program. The waiver decision would again be based on humanitarian purposes, to ensure family unity or if it would be in the public interest. Eligibility factors for such a waiver are that the individual was continuously physically present in the US for not fewer than three years immediately preceding the date on which he or she was removed or deported and that the applicant did not reenter the US unlawfully after January 1, 2021.

Deported or removed individuals who sneaked back into the country by January 1, 2021, appear to be eligible for the program.

Lawful permanent residents, persons admitted as refugees or granted asylum, or individuals who are in a period of authorized stay in a nonimmigrant status according to the records of DHS or the Department of State as of January 1, 2021, are ineligible for the program.

Applicants can apply with their family members in a single combined application, and there would be an accompanying petition to classify the dependent spouse or children of the principal applicant. The dependents can be in status. Other classes that can be in status and apply are those in nonimmigrant status solely by reason of §702 of the Consolidated Natural Resources Act of 2008, H-2A farmworkers, persons who have engaged in “essential critical infrastructure labor or services” during the Covid-19 response period, and those paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009.

Persons who are prima facie eligible to apply will be given a reasonable opportunity along with limited protections if they make the application within a reasonable period of time in that they are not to be removed before DHS makes a decision denying relief; a final order of removal has been issued; and the DHS decision is upheld by a court or the time for appealing for judicial review has expired. An exception to waiting until the end of judicial review for removal is if the order of removal is based on criminal or national security grounds.

To apply, required documentary evidence of ID includes not only traditional past legalization IDs like passport, national identity document, birth certificate/identity card with name and photograph, school ID card with name and photograph and school records, state ID card, Department of Defense uniformed services ID card, any immigration or other document issued by the US government with the name and photograph – but also any other evidence that DHS determines to be credible.

Documents establishing continuous physical presence include any other evidence determined to be credible, sworn affidavits, official records from religious entities confirming participation in a religious ceremony, and the more typical required evidence such as passport entries with US admission stamps, DOJ or DHS documents noting the person’s date of entry, schooling records, employment records, uniform services records, birth certificate for child born in the US, hospital or medical records, auto license receipts or registration, deeds, mortgages, or rental agreement contracts, rent receipts or utility bills, tax receipts, insurance policies, remittance records, travel records, and dated bank transactions.

Upon submission of the application, DHS will not deny the application until it sends out a Request for Initial Evidence (RFI), and the applicant fails to submit the evidence including requested biometric data by the deadline date. If the applicant fails to comply with the request and the application is denied, the individual can submit an amended application or supplement the existing application without an additional fee as long as the amended or supplemented application contains the required information and any fee that was missing from the initial application.

Denied applications can be appealed to an administrative appellate authority to be established or designated by DHS, and administrative appeals are limited to one for each decision. The time for appeal is 90 days from the date of service of the denial unless a delay beyond the 90 day period is reasonably justifiable. Further judicial review is allowed and governed by the rules involving immigration cases.

Approved applicants will be allowed to remain in the US for six years with travel and work authorization. A further extension of six years is possible. Applicants are eligible to apply for adjustment of status to permanent residence after five years of lawful prospective immigrant status.

For those concerned that DHS may share the submitted application information for removal proceedings or other purposes, there is a strong privacy restriction against the sharing of information except to a duly recognized law enforcement entity in connection with an investigation or prosecution of a criminal or national security offense, or for identification purposes of identifying a deceased individual upon request of an official coroner.

This part of the big bill affecting undocumented immigrants is to be fast tracked as the DHS Secretary is to issue a final regulation no later than 180 days after the President signs the legislation into law.

Hopefully the legislation will come to pass as it is long needed not only to bring people out of the shadows and to help reverse the reign of terror fostered by the Trump administration, but to help grow the economy as all serious studies have shown that immigrants-lawful and unlawful-benefit this great country socially, economically, and culturally.

[Please note that this article does not purport to be an extensive article outlining most of the “US Citizenship Act” or even cover all classes eligible to become lawful prospective immigrants. It touches on the major points of the legislation for the undocumented and those with final orders.]