World Journal Weekly Q & A - August 17, 2008

Q & A 1. 2. 3. 4. 5. 6. 7.

Q&A 1.

16 Year-old Child's Mother Becomes U.S. Citizen and Child Asks What Does She Need to Do Now

Kwan reader asks:

I’m sixteen; both my mom and I hold green card. My mom applied for citizenship and was approved this year. But only mom has the certificate of citizenship and I did not receive any thing. What do I need to do become a U.S. citizen? I want to change my name when I become citizen. Can I do that? What do I need to do?

Dear reader:

Under present law, you are probably automatically a U.S. citizen already by virtue of your mother's receiving her citizenship. Under the Child Citizenship Act, any child under the age of 18 automatically becomes a U.S. citizen if he/she holds permanent resident status and one of the parents with whom he/she is living becomes a U.S. citizen as long as the parents are not divorced or separated. In the latter case, the U.S. citizen parent must have legal custody. If you are already a citizen as outlined above, you can obtain proof of citizenship by either applying for a U.S. passport or filing Form N-600 Application for Certificate of Citizenship with U.S.C.I.S.. Unfortunately neither procedure will allow you to change your name. You must make an application with your local state court for a name change.

On the other hand, if your father has legal custody and you are not yet a U.S. citizen, you can apply on Form N-400 Application for Citizenship when you reach the age of 18 and request a free name change with the naturalization court.

Q&A 2.

I Am Illegal (Overstay) and Want to Change My Status in the Future - Can I Do It?

Wang reader asks:

I came to US under B1/B2 visa in 1/08. I filed divorce after I came to the U.S. and I am already illegal now. I don’t know if I can change my status in the future. What should I do?

Dear reader:

Under present law, you will find it difficult if not impossible to change your visa status to some other non-immigrant visa status. U.S.C.I.S. will only consider a late change of status to another non-immigrant visa status where there are exceptional circumstances. To change status to permanent residence in the U.S. is another matter. The conditions for doing that are that you must be legal except where you overstayed and are the immediate relative of a U.S. citizen (spouse, child, or parent of a child over the age of 21), the beneficiary of section 245(i) (giving the ability to adjust status for most persons who are illegal upon payment of a fine amount of $1,000, which benefit is currently available in its last version only to those who can show that they filed a labor certification application or immigrant visa petition by April 30, 2001, and were physically present in the country on December 21, 2000), or the beneficiary of other forms of extraordinary relief such as cancellation of removal or a private bill.

Q&A 3.

Can My Mother File Three Months Ahead of Time for Her 15 Year Citizenship Application?

Jin reader asks:

My mother got her green card in 11/1993 and it has been 15 years now. Can she apply for citizen in 8/2008 (14 years and 9 months) using her native language?

Dear reader:

Your mother must wait for the entire 15 years before she can make an application for citizenship on the basis of being at least 55 years of age and having the green card for 15 years. Applying for citizenship three months prior to the eligibility date is only available in situations involving three and five year eligible green cards. (For other readers, U.S.C.I.S. allows 15 year applicants to take the naturalization test in their own native language. This privilege is also available to individuals who are at least 50 years old and have held the green card for 20 years. A much easier test in the native language is available to those who are at least 65 years of age and have held the green card for 20 years.


Q&A 4.

How Long Will it Take for me to Apply the Green Card for My Adult Son?

Chiu reader asks:

I had received my green card this year. My son is 28 and currently working in the U.S.. I file paper for my son for his green card, how only will it take?

Dear reader:

I assume that your son is single since a green card holder can only apply for an unmarried son or daughter. For the month of August 2008, the waiting time is approximately 9 years. Only those individuals in most countries of the world (except Mexico and the Philippines) who filed I-130 petitions prior to November 1, 1999 are eligible for final immigration. Assuming that your son is single, you can apply for him at this time and possibly shorten the process if you later become a U.S. citizen. At that time, you would change the preference category from F-2B petition for unmarried son of a permanent resident to F1-1 petition for unmarried son of a U.S. citizen. The waiting line for F1-1s now is a little bit over six years as persons who applied prior to March 15, 2002, in most parts of the world are now eligible for final immigration. Switching from the F-2B to F1-1 category under the above circumstances will allow you to retain the F-2B priority date. (I must note that the waiting time to which we refer above is only based upon subtraction of the priority date from today's date. Accurately predicting how long the waiting time will be for an application filed today is very difficult if not impossible).


Q&A 5.

American Consulate in Guangzhou has not Responded for Over One and a Half Years to Reader's Follow to Join Immigration Case for Husband - What Can She Do?

Yang reader asks:

I received my green card as an extraordinary professional. I filed I-824 for my husband who is in China and received receipt in 12/06 and his documents were transferred to Guangzhou in 12/06. Two months later, Guangzhou called my husband and requested his birth certificate. He obliged. However, as of now, we have not received anything further. We called Guangzhou consulate many times, but in vain. What should I do?

I am 64 years old and would like to apply for social security benefits. Will it adversely affect the immigration through a family member?

Dear reader:

In your situation, you should press Guangzhou not only through telephone, but by letter, fax, and e-mail concerning the fate of your husband's case. You may also contact an attorney to help you with the inquiry or your local Congressman or Senator's office to do the same. Not receiving a response for one-and-a-half years on this type of case is too long.

If and when you get Guangzhou to process your husband's case, you will have to provide an affidavit of support for his final immigration. The taking of Social Security benefits for work that you have done in the U.S. would not be an impediment to the immigration of your family member. However, if by Social Security benefits you mean Supplemental Social Security benefits (SSI) which is a means tested benefit, such could have a negative effect on the ability to support issue if the consulate finds out that you are on SSI.

Q&A 6.

Reader Wants to Remarry Ex-wife and Then Sponsor Ex-wife and Child to Immigrate After Having Divorced U.S. Citizen Wife From Whom He Got Green Card

Ming reader asks:

I divorced my exwife in China in 2001. (Then I have had a 3 years old son.) In 2002, I married a US citizen and successfully came to US in 8/2004 and then received permanent residency. Due to certain reasons, the other party filed for divorce and in 3/2006 finalized the divorce in Court. It has been over 2 years now. Can I go back to China remarrying my ex-wife and applied them to come over to the US?

Dear reader:

Unless you have solid proof of the bona fides of your marital relationship, e.g. child, born of the relationship between yourself and your American citizen ex-wife, U.S.C.I.S. would likely take steps to revoke your green card if you went through with your plan. The circumstances would look too suspicious for the agency not to challenge your continuing right to the green card. I note that you can petition for your child without remarrying his mother since you are already his father.

Q&A 7.

I Sponsored My Daughter for the Green Card - What is the Best Way That She Can Apply for a Nonimmigrant Visa?

Lin reader asks:

I received my green card over 4 years ago and in the process of applying my daughter to come to US.. When I filed the papers for her in 2004, she had already over the age of 21. She is attending college in Japan and will be graduating next year. She wants to come to US traveling this year. Should she request for a visiting visa or traveling visa?

Dear reader:

The issuance of B-2 nonimmigrant visas is in the discretion of a consular officer. Applicants must fill out DS-156, the application form for a nonimmigrant visa. Your daughter should tell the truth on the visa application form - that you are here in the States (question asked on item 37 ) and that you have already applied for an immigrant visa petition on her behalf (item 36). Any other answer may jeopardize her future immigration to the States. Since she should be giving such answers on the form, she can state as her purpose to visit you in the States.


Copyright © 2003-2008 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.