Category: Q&A

1. How Do I Add My Relative’s New-born Child in The I-130 Petition?

I am a USA citizen and filled an I-130, Petition for Alien Relative, to petition my brother to the USA in 2006. My brother had a new-born daughter in 2007 after submitting the I-130. How to add the new-born child to the I-130 petition.

Mr. Lee answers:
Since U.S.C.I.S. generally does not take nine years to adjudicate an I-130 relative petition, I will assume that the petition is already approved and the file is at the National Visa Center, which can be described as the halfway house between U.S.C.I.S. and the consulate. I will further assume that you have already received some information from the National Visa Center giving you the case number at the agency. You can use that case number and the address on the paper to notify it that your brother has a daughter.  You should also enclose a copy of her birth paper. 

2. Applying for Naturalization Almost 3 Years After I-601 Approval and Green Card.

My husband was convicted of a CIMT (Crime Involving Moral Turpitude) 12 years ago. We already went through the I-601 process… he was approved, and has had a green card for almost 3 years now (by marriage to USC). He was not able to complete probation for that old crime until he entered with a Green Card and has had that probation completed for almost a year now. We want to start the naturalization process but I know about the 5 years of good moral character. Does that count from the time of his actual conviction or from the time he completed the probation for it? 

Mr. Lee answers:
Neither of your dates are correct. Good moral character starts not from the time of actual conviction nor the time that he completes probation, but from the time of the commission of the crime. As the CIMT was committed 12 years ago, he has satisfied the period of good moral character for the crime if you wait the full 3 years before making the application. I do note that depending upon the seriousness of the CIMT, a naturalization examiner can still consider it for purposes of good moral character. 

 3. ETA Form 9089 – Question

I entered the date in dd/mm/yyyy format in Date Signed section of approved FORM 9089. Can i correct it by striking and and writing new date with my initials?

Mr. Lee answers:
While the Department of Labor does not wish anyone to make any changes on the 9089 form while it is being processed, that prohibition against making changes does not apply once the form has been approved. If you made a mistake on putting in the date of signature on the approved form, you can strike it and write in a new date with your initials as you suggest.

1. RFE Change of Status H-4 to F-1

I have received an RFE (Request for Further Evidence) which contains two parts: 1. Finances – Proof that I immediately have funds to pay for my expenses. I plan to attach bank statements of my husband for past 3 months along with his pay slips. Statements show amount more than specified on I-20. 2. Residence Abroad to which you intend to return- Submit documentation to establish that you have foreign residence where you intend to reside at the expiration of your stay. Such documentary evidence can include but is not limited to: current telephone bills/utility bills/mortgage statements/rental agreements/rent receipts etc. I do not own any property in India and am in US for past year and half so I don’t have any rent receipts or rental agreement. My husband (sponsor) owns an apartment and we have electricity bills (which has my husband’s name) for it. My husband has written a plain text letter that I am equal owner of that home and we plan to stay there after completion of my studies. Would that be enough?

Mr. Lee answers:
It appears that you will be able to have enough evidence to satisfy the finance portion of the RFE. You might also add your husband’s current job letter and his last federal tax filing if he filed such. As to the portion of the RFE dealing with establishing that you still have a residence abroad to which you intend to return, you can also show items such as bank accounts in India, personal property, memberships and associations or clubs, list of all your relatives in India, etc.

 2. Possible Fake Visa

Possible fake visa Issued in Belgrade on sep 3 2015 valid for 2 years multiple entries visitor to a Serbian passport holder who visited US a number of times before but overstayed visa more than a year and left prior to deportation a month before new visa was issued Control number first 4 digits are 2004 Personal details are printed in bold font upper case letters but control number and passport number are in normal letters and different font photo is black.
                                                                                                                         
Mr. Lee answers:
It sounds like a fake visa, especially if you did not interview for it at the US consulate or embassy. 

3. How Can I Become a Legal Resident?

I’m a visitor and I’m pregnant and I do not want to return to my country.

Mr. Lee answers:
Generally speaking, most immigration to the States comes through family petition, employment petition, immigrant investment, or asylum. Being pregnant and later having a US citizen child will not allow you to become a permanent resident. The law was changed in 1976 to prevent a US-born child from petitioning for the parent until the child is 21 years of age. If you wish to stay, you should consult with an immigration lawyer to go over all your options.

1. My Conditional Green Card Had Expired and My Husband Has Refused to File for Me, and I Don’t Want to File for Divorce Because of my Baby.

I am currently pregnant.

Mr. Lee answers:
In your case, the best advice is for you to file for divorce and also file for removal of the conditional basis of your residence status by checking the box for having had a bona fide marriage which is ended. Following the expiration of conditional residence status, the Department of Homeland Security will typically send you a notice to appear in the immigration court. You should begin your action as soon as possible. You can file a late application to the U.S.C.I.S. regional service center by adding an explanation as to why your application is late. If your divorce is not complete by the time U.S.C.I.S. reaches the case, the agency will typically give you a period of time to complete the divorce.

2. Green Card Holder Has Medical Issue Preventing His Return to States Within 1 Year.

I am a citizen of USA. My father has been a green card holder for 6 years. Soon after he got his green card, he had to tend to his sick 90 years old mother in Poland. He has been reentering US every year with no problems to maintain his status. However, this year he injured his back while caring for his mother and is unable to return to the States within the 365 days of his last departure. Is there anything he can do (file extension for medical reasons/caring for his mother) that would allow him to keep his Permanent Resident status? Doctors estimate he would be able to attempt the trip to US about 2 months after his 365 day deadline. 

Mr. Lee answers:
Your father would appear to have two choices. He can go to the American Embassy or Consulate and apply for special immigrant visa or return to the US and take his chances with Customs and Border Protection at the port of entry. Whichever choice he makes, he should bring complete medical records to show that he injured his back and was medically unable to return to the States on time.

 3. Voluntary Departure

Is voluntary departure considered, removal, exclusion or deportation or is it a relief?

Mr. Lee answers:
Voluntary departure is considered a relief. It is something that can be given in lieu of removal, exclusion or deportation. However, failure to leave the US during the time of voluntary departure means that in lieu of such, the individual will receive that order of removal, exclusion, or deportation. Failure to leave during the period of voluntary departure incurs other penalties, of which one is inability to adjust status for 10 years even if otherwise eligible to do it. 

1. What If My Immigration Visa Applicant Is Denied but Children’s Approved?

I applied for me the Applicant and my children but the case status appears Administrative Processing on mine but ready for my children in the NVC. Can they receive their visa without me?

Mr. Lee answers:
The answer depends upon whether the visa applications are separate standalone applications or whether the child is filing under a dependent status. If the first, he or she may be able to receive the visa without you; if the second, he or she must await your result.

2. Am I Eligible to File My Adjustment Status Form (I-485) Thru My U.S. Citizen Spouse, After My Recent Student Visa Expired?

I have recently become the spouse of the U.S. citizen and wanted to file I-485 form to adjust my status.  Previously, I was on F-1 student visa that has recently expired. Would my student visa expiration cause any difficulties when approving my I-485 form? Do I need to submit any additional forms in addition to I-864 and I-130?

Mr. Lee answers:
Marriage to a U. S. citizen excuses an overstay in the United States. I do not see it causing any difficulties in your immigration case unless you did not ever attend the F-1 schooling. In addition to the I-130, I-485 and I-864 forms, you will both have to submit G-325A biographic data sheets. If you wish employment authorization or advance parole privileges during the time that the case is pending, you would file forms I-765 and I-131. 

 3.Dual Citizenship

I am naturalized U.S. citizen. I am planning to get divorce in U.S. and want to marry a Canadian Citizen.  My question is if I marry to Canadian citizen; do my U.S. citizenship can be terminated? I was born in India.

Mr. Lee answers:
The U. S. and Canada both have the same policy that citizenship in one country does not cause termination of citizenship in the other. In other words, both countries respect the concept of dual citizenship with each other.  

1. Green Card Sponsorship

I need some information in regards to my brother. He is 27 years old and currently lives in Pakistan. When he was about 12 years old he was deported back to Pakistan with my father while entering the US on a visitor visa. The immigration officer had found documents which basically showed that he and my father were living in the US on visit visa albeit renewing the visa every 6 months and never overstaying. He is now engaged to a US citizen and hoping to get married by the end of the year. We will need to start his sponsorship process then. Can you please tell me if the above mentioned issue will cause him any problems? Secondly, if there are no issues how long do you think the entire sponsorship process will take?

Mr. Lee answers:
The Department of State’s guidance is that a child under the age of 15 cannot act willfully and therefore cannot be found ineligible for fraud or misrepresentation in the circumstances that you describe. Also the period of time in which a person is barred from the country for being declared inadmissible at a port of entry is 5 years. The entire sponsorship process in a marriage case will typically take a year. 

 2. Do We Need to Complete Form I-864?

Daughter is US Citizen, lives in Argentina. She is married to an Argentine. Neither have jobs yet. Want to live in USA.

Mr. Lee answers:
Unless there are exceptional circumstances, your daughter would typically file an I-130 petition for alien relative to the U.S.C.I.S. Chicago lockbox at
(For U.S. Postal Service deliveries)
USCIS
P. O. Box 804625
Chicago, IL 60680-4107
 (For express mail and commercial courier deliveries)
USCIS
Attn: I-130
131 South Dearborn – 3rd Floor
Chicago, IL  60603-5517

At the time of consular processing after the approval of the I-130 petition, she would have to submit form I-864, and she would typically need someone in the United States such as you to file a joint I-864 in light of the circumstances that you describe. 

3. How Long Will It Take For Green Card Holder to be a Citizen After Submitting Application?

Can I put in for my daughters resident papers at the same time?

Mr. Lee answers:
Typical processing for citizenship cases across the country is from 6-10 months. Looking at the processing time chart for the Dallas field office, it says that the time for processing a naturalization case up to the date of interview is 6 months. If your daughter is 18 and over, she can file at the same time as you as long as she has fulfilled the required period of residence. If not yet 18, you would have to get your citizenship first and she would typically attain her U. S. citizenship upon your obtaining such if she is a permanent resident and living in your custody. She can ask U.S.C.I.S. for recognition of her U. S. citizenship status through the N-600 application for certificate of citizenship.

 

1. Applying For A Green Card 9 Months After Being Granted Asylum

I know that an asylee can apply for a green card one year after being granted asylum if he/she was physically present in the USA during that period of time. But I heard from different people and lawyers that an asylee can already send the I-485 form 9 month after being granted asylum. Is that true or not? I already know some people who applied after 9 month and were granted a green card. Is it depended on the immigration officer reviewing your I-485 form or something else? If the one year period is mandatory how could some people apply after 9 month and get their green cards?

Mr. Lee answers:
It is mandatory under US law that an individual be in the US for one year physically before he or she is allowed to apply for an I-485 adjustment of status under the asylum category. I do not know how individuals would be able to successfully apply after only nine months. 

 2. H-4 EAD Question

I am on H-1B(with approved I-140) and my wife is on H4, she got the H4-EAD three weeks ago per the latest H4 EAD rule. My priority date is now current so I can file the I-485 for me and my wife. How do I go about making sure that my wife gets the I-485 based EAD and does not stay on the H4-EAD. I understand that she cannot have two EADs but I prefer that she be on the I-485 based EAD rather than the H4-EAD.

Mr. Lee answers:
You are correct that your wife cannot have two EAD’s at the same time. To us, an EAD is only for working and one EAD is as good as another in many cases. I do not see the advantage of an EAD acquired through having applied for adjustment of status as opposed to your wife’s present EAD under the H-4 category. It may just as be as well for your wife to continue under her present EAD, and then to apply for another EAD under the I 485 filing when the present one is four months from expiring. 

3. Add My Son to My Case

Base on visa bulletin my case has been reached. Now I have a one year old child and I would like to add him to my case but I do not know to which address of NVC should I send his information. I mean I do not know to send his birth certificate to NVC attn WC or to NVC attn DC. What is difference between this two?

Mr. Lee answers:
Whether you put an inquiry to the NVC to the attention of the WC or DC, it will undoubtedly be routed to the right section and person. Just make sure that you get the address correct.