World Journal Weekly Q & A - August 29, 2010
Q & A 1. 2. 3. 4.
Delayed Naturalization Due to Background Checks - For What Reason and What To Do?
Fang reader asks:
I got married to an American citizen in May 2001 in Guangdong, China. In June 2003, I came to US and received my permanent green card. But the marriage only last till 2005. As of today, I have not re-married. My eligibility for citizenship changed from 3 years to 5 years because of this. On March 2008, I hired a lawyer and filed my naturalization papers. I was fingerprinted in 4/2008 and in 9/2008 I received an interview notice. Unfortunately, a week before the interview, my lawyer received a letter stating that my case would be delayed due to the incompletion in background check. As of today, 2 years later I still have not received any interview notice.
Every 4 months, I would go for Infopass and check online. However, the answers have always been in the “testing & interview” stage. I’m frustrated. My questions are:
1. What is my next step?
2. Can I sue? If I do, will it complicate my case? I informed my lawyer that I wanted to sue, however he asked me to wait a bit longer, why?
3. I spent 810 days in China between 6/2003 to 6/2008, and each trip, I did not exceed 4 months. Was it because I left for China too often causing my case being delayed?
1. If you or your attorney has not yet done so, you should keep reminding U.S.C.I.S. about your case. You can also attempt to interest a local congressman or senator's office to keep inquiring about your case with U.S.C.I.S.
2. In cases that have been unduly delayed due to background checks, suing the agency in federal court has sometimes helped to expedite background clearances.
3. It is difficult to state for which reasons background checks are not yet complete. Having a common name with someone who is of some interest to law enforcement or U.S.C.I.S. is a major reason why many people are delayed in having their cases adjudicated. The reason for delay does not have to specifically pertain to you or any of your actions.
Can My Son File for Adjustment of Status With I-130 Receipt (Approval Was Lost) and a Copy of My Naturalization Certificate or Must I Do Something Else?
Lucy reader asks:
In April 2006, I, as a green card holder, applied for my 22 years old unmarried son to come to America. The address I used was an immigration consulting company. In Sept. 2009, I used my citizenship paper asking for adjusting of my son’s status. The problem was that the consulting company submitted only my citizenship paper and I-130 receipt. Recently, I wondered why I had not received the I-130 approval since the priority date was getting closer. My friend checked online for me and found out that my son's I-130 had been approval since 6/29/2009. The consulting company did not notify me and I did not know the priority date on the approval notice.
My questions are:
1. What is the difference between I-130 receipt/citizenship paper and I-130 approval notice/citizenship paper? Would the CIS reject the adjustment of the status due to lacking the 1-130 approval notice?
2. How do I know if my son’s priority has been current or not? Can I check on-line?
3. If I could not find the I-130 approval notice (the consulting company had looked for over 1 week and still could not find it), will it affect my son's immigration case? How can I make up for that?
4. If my son’s case has not been upgraded to the first category - F1, what should I do next?
5. I believe my son’s priority date will be current soon. When do you think the CIS will send me notice?
1. U.S.C.I.S. should not reject an immigration filing for I-485 adjustment of status where the applicant is using proof of I-130 receipt and U.S. citizenship paper. The I-130 receipt would show U.S.C.I.S. that the I-130 has already been filed, and the citizenship paper would show that your son is entitled to an upgrade in category through your becoming a U.S. citizen.
2. As your son would be proceeding under the F-1 category for adjustment of status, he should know that the priority date of April 2006 is not yet current for you to file an adjustment of status application. For the month of September 2010, the visa bulletin of the U.S. Department of State shows that visa availability is only up to those who filed I-130 petitions before January 1, 2006.
3. See question one.
4. See question one.
5. With a priority date in April 2006, it is difficult to know how long it will take for the date to be reached. I note that from July-August 2010, the category has jumped 4 months, and from August – September 2010, the category has jumped 5 months.
Petitioner Filed I-130 for Son While in Washington D.C., Was Naturalized After I-130 Approval, and Whole Family Moved to Hawaii - Where To and How Should We File Son's Adjustment of Status? How to Upgrade the Category Since I Became a U.S. Citizen after the Approval?
Lin reader asks:
My husband and I arrived in the U.S. in 11/2003 through my eldest son’s application. Originally we lived in Washington, DC. In 8/2005, as a green card holder, I applied for my unmarried youngest son for immigration. But my youngest son had already received a student visa in 2001 and studied in VA’s school. In October 2005, we received a letter from Vermont Service Center notifying me that the case was approved and waiting for priority date to become current. In July 2007, my husband, my youngest son, and I moved to Honolulu, Hawaii to live there. My youngest son was transferred to Hawaii community college to study. He notified CIS his change of address on-line. (He has been in US for 10 years and still kept his student status and is still unmarried). Right now, the F1 category priority date is April 4, 2005. My youngest son is only 4 months away from the priority date.
My questions are:
1. Do we need to notify Vermont Service Center that my husband and I have become U.S. citizens and have moved to Hawaii? Or, should we notify CA’s immigration office where we filed our naturalization papers?
2. What do we do when his priority date becomes current? Where do we send his I-485 form to since we now live in Hawaii? Besides sending the copies of our naturalization papers and copies of our green card approval notices, what other documents do we need to send?
1. You do not have to do anything at this time. When the priority date clears, you can have your son file an adjustment of status application with a copy of the I-130 approval and copy of your U.S. citizenship paper.
2. When the priority date clears, your son would file for I-485 adjustment of status with that Chicago lockbox of the National Benefits Center. That is the same address that anyone within the 50 states would send the application. The addresses are:
For U.S. Postal Service (USPS) deliveries:
P. O. Box 805887
Chicago, IL 60680-4120
For Express Mail and courier deliveries:
131 South Dearborn - 3rd Floor
Chicago, IL 60603-5517
3. Other documents which are required besides the forms are a copy of your son's passport and I-94, proof of his maintenance of lawful status since entry, medical examination, proof of birth and affidavit of support paper.
Here 11 Years and With 3 Children and With Failed Labor Certification Case From March 2001, What is the Best Option to Take to Immigrate?
A reader asks,
I have been in the United States since 1999. I came here on a legal visa with my wife and two children. In March 2001, I applied for a labor certification application through a restaurant as a Chinese cook. The labor certification was approved, but the restaurant then did not want to continue sponsoring the case. My two oldest children are now 19 and 18 years old, and we now have a four year-old U.S. citizen child. Other relatives that I have in the United States with legal status are my two brothers and sisters. My four year-old child has asthma, but no other serious medical problem. I and my wife have never had a problem with Immigration or the police in any country. I am desperate to get legal status at this time because my daughters are going to go to college soon, and are having a problem getting into any good schools because of their illegal status. Can I do a political asylum application at this time based on the number of children that I have? Can I apply for a 10 year green card? What is your advice?
I cannot recommend a political asylum application based on the one child policy of China even though you have three children for a number of reasons. A chief reason is that by law you should apply for political asylum within a year of coming to the States. Even if you point out that your third child would constitute a new reason for persecution under the family planning policy, that application would be late as your child is already four. I also cannot recommend requesting cancellation of removal (10 year green card) as it is entirely uncertain as to whether the case can be won. Although you will likely be able to prove 10 years residence in the U.S. and good moral character, the standard of hardship to your only qualifying relative, your four year-old U.S. citizen child, if you depart is extremely difficult to meet - exceptional and extremely unusual hardship. In addition, the application must be sought before the immigration court and not U.S.C.I.S. Losing in an immigration court would likely result in an order of removal which you might or might not decide to appeal to the Board of Immigration Appeals. A more viable alternative even though longer in time is another labor certification application from a U.S. employer that needs your services. You appear to have eligibility for adjustment of status based upon your old approved labor certification with March 2001 priority date. Such could be used to allow you benefits under Section 245 (i) under which individuals who had an immigrant visa petition or a labor certification application filed on their behalfs by April 30, 2001, can adjust status to permanent residence in the United States without leaving upon payment of a fine amount (currently $1,000) if they have any basis to immigrate. A further alternative is to wait for legislation that would provide a pathway to legal status by Congress and the Administration. There are many hopeful signs that such legislation will come into effect by 2011.