Latest update April 23rd, 2024 12:59 AM
Sep 14, 2014 News
By Attorney Gail S. Seeram,
[email protected]
Through this “Question & Answer” column, our goal is to answer your immigration questions. We appreciate your comments and questions. If you have a question that you would like answered in this column, please email: [email protected].
Question #1: I tried to enter the USA with a fake US passport 23 years ago. I was caught and was sent back to Guyana. Soon after I decided to come to the UK. I am now a law-abiding UK citizen with a British passport. I applied to visit my parents who are US citizens and was denied a visitor visa due to my violation. How can you help?
Answer #1: In general, United Kingdom (UK) citizens are eligible for a visa waiver so not required to apply for a visa, just register using the Electronic System for Travel Authorization (ESTA) program and automatically get to visit and stay in U.S. for 90 days. So, your ESTA application was probably denied. You may seek an INA 212(d)(3) waiver from the U.S. Embassy and show your parents in the U.S., reason for travel to U.S., and your strong ties to the U.K.
Question #2: I tried to enter the United States illegally six years ago. I was caught up in Aruba. I was using a US citizen’s passport that was reported as stolen. They took my photos and my biographic data and I was sent back to Guyana. I was not formally charged with anything by the US government. Recently I tried to obtain a visa legally and was denied. Will I ever be allowed to enter the US?
Answer #2: The U.S. Immigration system probably has you noted as making a false claim to U.S. citizenship since you used a stolen U.S. passport to try to enter the U.S. Most likely, you will not be allowed to enter the U.S. since you do not qualify for a waiver for a false claim to U.S. citizenship. A waiver does exist for false claim to U.S. citizenship, but you do not qualify for the waiver.
Question #3: My husband is a permanent resident in the USA he filed for me and my children in June 2011. We have now received the DS-3032 paper. How much longer do we have to wait to get the other papers and the interview paper?
Answer #3: Once your husband submits the DS-3032 (now required to be submitted on-line as DS-261) along with DS-260 on-line (formerly Form DS-230) and the affidavit of support, then you should have an interview at any time.
Question #4: My father’s brother who is a citizen put in for us in November 2002. However, my brother and I went 7 years ago to the US with visitor visas and overstayed. We went to school and college. Will that affect my parents when they go to get their visas to come? And can you say if we will gain legal status in the US? We are both over age.
Answer #4: Your overstay will not affect your parents petition. Currently, for sibling petitions, visas available for petitions filed on or before August 2001. So, your parents have about a 1-year wait. Unfortunately, since you and your brother overstayed in the U.S. and are over age 21, you both will not be eligible to gain legal status through your parents’ petitions.
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Sponsorship issues relating to adopted Children and Orphans
The process of obtaining lawful permanent resident status for an adopted child or orphan is not an automatic process. The adoption process can be long and tedious, but once an adoption is finalized, then the immigration process begins. In order for an adopted child or orphan to gain entry into the United States and/or lawful permanent residence status in the United States, various requirements must be met, such as residency, legal custody, and age when adoption finalized.
Adopted Child:
In order for an adopted child to be approved for lawful permanent resident status in the United States, the adoption must be final before age 16, the child must reside with adoptive parents for two years and have been in the legal custody of the adoptive parents for two years.
The U.S. Immigration authorities will require evidence to prove the adopted child resided with the adoptive parent. Such evidence may include school records, tax return records, medical records, photos and notarized affidavits. In addition, the adoption decree must be final before the adopted child reaches age 16. If the adoption was filed before the adopted child was age 16 but became final after the adopted child turns age 16, then the adoption cannot be used to establish a parent-child relationship for U.S. Immigration benefits.
Once an adoption is final, the adopted child cannot obtain immigration benefits from his/her natural parents and the adopted child cannot petition for his natural parents or siblings. The adopted child can only obtain immigration benefits through their adoptive parents and vice-versa.
Orphans:
A different set of immigration rules apply to orphans that are adopted and seek entry or lawful permanent resident status in the United States. An orphan is a child that has been abandoned by reason of death, disappearance, abandonment and/or desertion, separation or loss of both parents. Orphans do not have the two-year legal custody and residency requirement. Thereby, an adoptive parent can file an immigration petition for the benefit of an adopted child and does not have to reside with the child for two years. However, the adoption must be final before the orphan reaches age 16.
A child in the U.S., either illegally or as a nonimmigrant, is ineligible for the benefits of an orphan petition. In this case, the child can be adopted by his/her adoptive parents, but would have to meet the two-year residency requirement before being eligible to apply for lawful permanent resident status in the United States.
The distinction between an adopted child and orphan can be complex and not meeting the requirements may lead to a denied immigration petition. It is recommended to seek the legal advice of an immigration attorney when filing for such immigration benefits.
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