May 2021 – Alan Lee

Q&A’s published on the World Journal Weekly on May 30, 2021 1. Filed a Form I-539 and the 240 days are almost up and no answer from USCIS? What to do now? 2. H-4 Visa Holder Will Age Out Soon 3. Renew Work Authorization While in Removal Proceedings

1. Filed a Form I-539 and the 240 days are almost up and no answer from USCIS? What to do now?

I filed a Form I-539 back in September of 2020 to extend my status due board closure of my home country. The case status when checked says pending, however the 240 days are almost up and I haven’t heard any response other than a waiting a biometric appointment. Now that the boarders are open should I leave? what implications would I face if leave before the case has decision.

Mr. Lee answers,
It is difficult to say what will happen if you leave the US at this point. I assume that you filed for a six-month extension or 180 days. USCIS believes that if the intended period of stay exceeds the time that you are requesting, you should file an application to extend even if the first application is still pending. Perhaps the better route at this time would be to file for a late extension before leaving the country. Generally, a person leaving the US during the time of a pending extension would have no problems, but I am not sure that the answer holds for someone leaving the country where he or she has already exceeded the time requested on the pending extension.

2. H-4 Visa Holder Will Age Out Soon

I am a Canadian citizen residing in NYS. I am here on a H-4 visa. I recently found out that I am aging out of my H-4 visa, as I will be turning 21 years old this month. I need help to figure out my options. Is there anything I can do to remain in the United States? I looked into switching my H-4 visa for an F1 visa. I also looked into getting an adjustment of status, as my partner and I would like to get married.

Mr. Lee answers,
I believe that you have mentioned two of the more viable ways that an individual who is aging out can remain in this country. We generally recommend F-1 visa unless there are more viable options like marriage to a permanent resident, US citizen, or nonimmigrant with long-term status. I note that if you have a short-term wish to stay, you can submit an application to change status to B-2 visitor.

3. Renew Work Authorization While in Removal Proceedings

I would like to hire an attorney Also to renew my work authorization while in removal proceedings.

Mr. Lee answers,
Assuming that you still have the application pending which made you eligible for employment authorization, you should be able to renew it while in removal proceedings. Immigration attorneys are available throughout the country – most with a practice in immigration law belong to the American Immigration Lawyers Association.

News: “Our law firm gains remand of 1-212 prelude to I-601A as USCIS appellate body (AAO) examines in detail evidence given in application and appeal and decides that certain points relied upon in initial USCIS denial are not relevant.”

Dear Readers,

Attached is a nonprecedential AAO decision that we just received remanding the matter to the Field Office Director relating to a conditional application for permission to reapply for admission on form I-212 to allow the applicant to file form I-601A application for provisional unlawful presence waiver. In the decision, the AAO considered all of the applicant’s evidence of equities presented in the initial application and on appeal along with the unfavorable factors of skipping a court date and repeated immigration violations, and noting that the applicant contested inadmissibility for misrepresentation.

In making a de novo review, the AAO stated that, as the applicant indicated that he would depart the United States and apply for an immigrant visa, it did not need to determine whether he was inadmissible for misrepresentation – that the Department of State would determine the applicant’s eligibility; that having a final order of removal should not have constituted a negative factor against a favorable exercise of discretion as having a final order was a prerequisite to seeking permission to reapply; that the Director weighed negatively the applicant’s unlawful employment, and although conceding as positive factors the applicant’s employment and payment of taxes, did not appear to weigh favorably his employment and multiple years of tax filing; that the decision did not appear to fully address the evidence about hardship to the applicant’s family; that the Director erred in not considering the applicant’s hardship and that positive factors may also include the applicant’s respect for law and order, good moral character, family responsibilities, and his likelihood of becoming a lawful permanent resident.

The AAO’s careful examination of all factors should encourage the inclusion of as much evidence of equities as possible with the application and on appeal.

Very Truly Yours,

Alan Lee, Esq.

Q&A’s published on the World Journal Weekly on May 9, 2021 1. I want to bring my minor sibling along with my parents. 2. I filed an I-130 for my daughter of above 21 of age. She is in the U.S. with a tourist visa. Can I go ahead to file work authorization and change of status for her? 3. Can I cancel form I-130? 4. Petition for my father after 10th year outside of USA, he stayed 14 years in the United States as an illegal 5. Can I apply for a student visa with a pending I-130?

1. I want to bring my minor sibling along with my parents.

I’m a U.S. citizen and want to bring my parents over here. They have a 19 y/o son. If I apply for the green card for my parents, and they get it, can they bring my minor sibling along with them? Or do they have to apply separately for him? Do they (my parents) need to show their income to apply for my sibling? What is the waiting time for my parents to apply for my sibling? If he becomes 22 by the time of the sponsorship process, can they still sponsor my sibling for the green card?

Mr. Lee answers,
Sponsoring your parents puts them in the immediate relative category which does not have dependents. Therefore, they would have to immigrate before one or both begins the sponsorship for their son. They would have to show their income to apply for him, but could also use the income of a household member or joint sponsor. Assuming that your parents immigrate, and during the time of their filing for their son, there is open visa availability before your brother turns 21, the waiting time would be approximately 1-2 years. If the visa category (F-2A) date is not available for your brother until after the age of 21 (even counting the adjustment on age afforded by the Child Status Protection Act (CSPA)), his case would fall into the F-2B category for adult children of permanent residents, which currently has a 5 ½ year backlog.

2. I filed an I-130 for my daughter of above 21 of age. She is in the U.S. with a tourist visa. Can I go ahead to file work authorization and change of status for her?

I am a permanent resident. I filed an I-130 application for my over 21 years old biological daughter. Can I go ahead to file for work authorization for her so she can work pending when the I-130 is approved.

Mr. Lee answers,
Your daughter’s petition is under the F-2B category for adult unmarried children of permanent residents. That category only has immigrant visa availability for filing I-485 applications for adjustment of status for those petitions submitted before 6/15/16 for most countries of the world. Work authorization can only be filed in your circumstances where there is visa availability. So unfortunately, your daughter will not be able to obtain employment authorization. Please note that she is also not allowed to stay in the country legally just on the basis of an I-130 petition filing.

3. Can I cancel form I-130?

Mr. Lee answers,
As long as the beneficiary has not immigrated to the US, the petitioner can cancel or withdraw the I-130 form. I note, however, a cancellation or withdrawal does not mean that the petitioner or beneficiary can legally claim that no petition was ever filed.

4. Petition for my father after 10th year outside of USA, he stayed 14 years in the United States as an illegal

I am filling a petition for my father, he left USA 10 years ago after he stayed 14 years in the United States as an illegal and was ordered to abandon the country by a court of immigration. He married an American citizen but they never finished the process

Mr. Lee answers,
Assuming that your father is not barred for any reason other than being in the US for one year or more illegally, he should be able to immigrate provided there is no problem with financial support. He may be asked about his marriage to the American citizen as an attempted fraudulent marriage would be a permanent bar.

5. Can I apply for a student visa with a pending I-130?

I have a pending I-130 (brother filed in June 2020) and I am in US. I have an admission into a very prestigious school to start in the Fall of 2021. Would the USCIS allow me to apply for a student visa, if by August my I-130 hasn’t gone through?

Mr. Lee answers,
I assume by the way your question is phrased that you are contemplating a change of status to F-1 student by USCIS. The I-539 form to change or extend status asks whether an immigrant petition has ever been filed for you. A positive answer brings the possibility that an immigration officer may doubt your nonimmigrant intent, which is required to be established in such cases. I do note that in the past, we have had some such applications approved. Having had an immigrant petition filed on someone’s behalf is not as damaging as having applied for an immigrant visa or adjustment of status to permanent residence. Whether the petition is approved or pending does not change the answer to the question of the immigrant petition on the form.