1. Sneaked into U. S. and US-Born Child Now 21 – Can He Sponsor Me?
I came into the United States illegally in 1995 through the Mexican border and was not caught. I have no criminal record and no problems with Immigration. I got married in 1998, but my wife was ordered deported. Our son is now 21. Can he sponsor me for the green card? I also have 2 brothers who are U. S. citizens, a sister who lives in Thailand, and my mother in China.
Mr. Lee answers,
Unless you qualify under §245(i) under which you had to have a visa petition or labor certification filed on your behalf by January 14, 1998, or between January 15, 1998 – April 30, 2001 with the additional requirement of being physically present in the U. S. on December 21, 2000, you are not adjustable to permanent residence in the U. S. even though your son is a U. S. citizen. However, you may still be able to qualify under the I-601A program for a provisional unlawful presence waiver if your son sponsors you for permanent residence and your mother immigrates. That is because you can only obtain a waiver of the 10 year bar for staying illegally in the United States at least one year through a U. S. citizen or permanent resident spouse or parent. So in this case, one of your brothers would have to sponsor your mother, and she would have to immigrate. You would also have to demonstrate that it would cause her extreme hardship if you could not return to the United States. The steps are that your son would sponsor you through an I-130 petition for alien relative, and once approved, you would file for the I-601A waiver in the U. S. based on extreme hardship to your mother. Once that is approved, you would go through regular consular processing and be interviewed at the American consulate or Embassy in your home country where you would be treated like any other immigrant visa applicant. The usual time outside the U. S. is 1-2 months.
2. Late to File I-751 Application to Remove Conditions on The Green Card Through Marriage, What Can I Do As I Am Now in France?
I received my conditional green card through my husband and we have a good marriage. However, he has to work in San Francisco, and my job is in France. We communicate a lot together, and he sometimes visits me in Paris and I go to San Francisco. I just noticed that my conditional green card has expired for 2 months and I forgot to file the I-751 application. What should I do now? I still need to work in France, but would like to travel back and forth during the next year. How can I do that?
Mr. Lee answers,
It may be possible for you to file a late I-751 petition with good explanation to U.S.C.I.S. as to why the petition is late. It will be up to the agency whether to accept the excuse or not. You and your husband should attach all evidence of the bona fide marriage and why you are living apart at this time. You will be scheduled for biometrics and will have to return to the States to fulfill the appointment. Generally you would need a travel document since the green card is expired, but in looking at the special instructions for the I-131A Application for Travel Document (Carrier Documentation), U. S. Customs and Border Protection (CBP) will generally allow expired two-year green card holders to return to the U. S. if they have the form I-797 notice of action showing that they filed the I-751 application and have been outside of the U. S. for less than a year.
If you have no good excuse, and since you and your husband still have a good marriage, you and he may decide in the alternative to have him file a new case for you beginning with the I-130 Petition for Alien Relative, and you would have to likely remain outside the U. S. until you pass your immigrant visa appointment at the U. S. consulate or embassy.
3. Received H-1B Change of Status Beginning 10/1/19, OPT Expires in July, and I Want to Travel in August – Are There Any Risks?
My employer-sponsored my H-1B petition in early April, and we were happy to have it approved this month. The approval says that it is good from October 1 for about 3 years. My optional practical training (OPT) runs until July 15, 2019. I am planning to return home to India in August for my cousin’s wedding for a week. Can I do that and come back immediately? If not, can I at least visit Canada in that month or early September just for a holiday before I begin to work?
Mr. Lee answers,
You are on cap-gap status which allows you to work in the U. S. until 9/30/19 since your H-1B petition was selected. However, that does not give you the right to travel by itself. You could possibly travel home prior to the time that your OPT expires with valid EAD and proof of employment, but not afterwards. If you travel home in August, you would have to stay overseas until you obtained the H-1B visa and return within the 10 day period prior to October 1. On your desire to take the trip to Canada in August or early September, I see your thinking that you should be able to do that as you are technically still in F-1 status and through automatic revalidation allowed to travel to Canada or Mexico or some Caribbean islands for up to 30 days and return without having a valid visa in the passport. However, you are in the grace period, and that period of time is regarded as one for departure, not reentry to the States. ICE instructions (ICE now manages the SEVIS program) are that reentry under those circumstances is not allowed. There is a chance that CBP may admit you with a waiver if you did not know that you could not travel during the grace period, but I do not recommend that you try that.
4. Father Sponsored Me in July 2014 As Unmarried Son of a Permanent Resident And The Dates of Filing Chart Has Been Reached, But The Petition Is Not Approved. What Can I Do?
I am a PhD student with F-1 status.
Mr. Lee answers,
The visa chart for dates of filing (Chart B) in July 2019 is available for those who filed petitions under the F-2 B category prior to 8/15/14. U.S.C.I.S. has stated that it will accept the dates of filing for the month. On or after July 1, 2019, you can file an I-485 application for adjustment of status to permanent residence with U.S.C.I.S. even though your petition is not yet approved. You should attach a copy of the I-797C notice of receipt along with all the other documentation and forms.