1. In Final Stages of Our LPR Son Sponsoring His Wife In China, What To Look Out For?
Our son has a green card through us, married his girlfriend in China, and has been in China for most of the past 2 years with her using a reentry permit. U.S.C.I.S. finally approved his I-130 petition for her 2 months ago, we paid the fees to the National Visa Center, and now we are at the stage of gathering documentation and filling out his wife’s immigration application form. We see that the visa category for his wife is open, and assume that she will be interviewed soon. They do not have any children yet. Is there anything that we or he should be aware of at this time?
Mr. Lee answers,
Your son and his wife should gather together all evidence of the bona fide relationship including wedding photos, studio photos, reception photos, photos of them living together, taking trips together with flight tickets, bus tickets, rail tickets, hotel receipts, household registration, statements from family, friends and neighbors with knowledge that they are married and living together and how they know, correspondence sent to either one of them at the place that they live, etc. Your son should also consider leaving China and staying in the U. S. as the affidavit of support that he will be signing (even if there is a financial cosponsor) is dependent upon his establishing a domicile in the U. S. According to the Department of State, he must satisfy the consular officer by a preponderance of the evidence that he will establish a domicile in the U. S. on or before the date of his wife’s admission to the U. S., and the Foreign Affairs Manual gives as examples opening a U. S. bank account, transferring funds to the U. S., making investments in the U. S., and seeking employment in the U. S. The best proof is being in the U. S. with at least one of the above.
2. Have Order by Immigration Judge Because Did Not Show Up, Can My American-born Son Now 21 Sponsor Me for the Green Card?
In 1992, I came to the United States illegally by boat, was caught before landing, spent 3 months in detention, and did not attend my court hearing. I know my case number but do not have any papers. My son is now 21 and I would like him to apply for the green card for me and he is willing to do it. He works in a restaurant and pays his taxes which is enough for my support. I have never been arrested except by immigration when I came into the country and have tried to live a good life as a good person since coming here. Can he do it?
Mr. Lee answers,
The answer may well depend upon what U.S.C.I.S. did in terms of paperwork when you were released. If you were given an I-94 card with the legend “212(d)(5)” on it, that would fit one of the requirements for adjustment of status as a person who has been inspected and admitted or a person who has been paroled. Although your case would be complicated even if you had such an I-94, at least you would have a starting point. I suggest that since you do not have documentation on your case, you should obtain a complete copy of your files from both U.S.C.I.S. and the immigration courts. You can do so pursuant to the Freedom of Information Act. Even if such an I-94 is not disclosed in your immigration files, it is always good for you to have a copy of your immigration files as any lawyer who will work on your case in the future will want to see what information the government holds on you.
3. H-4 Dependent Now Visiting Home, Can I Apply For Employment Authorization Card?
My husband has been working in the U. S. for 3 years in the U. S. under H-1B visa and me under H-4 dependent visa. He just got his I-140 petition for work approved while I am visiting at home overseas. I plan to be here for the next 2 months before returning to the U. S., and want to know if I can apply for the employment card based on my husband’s getting the I-140 approved to save time and someone told me that it will take Immigration about 3 months to approve the work permission.
Mr. Lee answers,
Unfortunately, that does not appear to be possible under current immigration procedures. The instructions on the I-765 Application for Employment Authorization state in the first line that “Certain foreign nationals who are in the United States may file form I-765….” In addition, the form asks for information concerning present address and last entry into the United States. If a foreign address is used or the entry section is left blank, the application would in all likelihood be rejected. You should be patient and wait to file until you return to the States. I note that the H-4 employment authorization program is experiencing strong headwinds as the Trump administration will likely come out with regulations restricting or abrogating it in the near future.