Urgent Help:Is my mom still eligible for GC thru me? (US Citizen) Long story....

[momgreencard]

[EDIT] -- I just found out that, i made some mistakes in my original post.

1. My mother has a PERMANENT visa - NOT 10 years visa.
2. My mother left united states for the first time at July 1999 (After overstaying for 8 years - but with the asylum court with her cancelled), came back on August 2000.
3. Left again for 2 times (all within the 6 months visa given at POE) after coming back Aug 2000.
4. Then came back on NOvember 2002. Overstayed again...
5. Left the US again on August 2004 (from the Nov 02 entry - overstayed for 15 months).
6. Came back on October 2004 using the SAME VISA / PASSPORT that was used when she came back on #3.
7. Stayed in the US till now.

She did NOT use any false / fake statements. And all of her arrival was thru the POE, has visa stamps, I-94 each time.

[/EDIT]


Hello All,

I am in need of some good advice, as I am not sure what to do at this point. All responses are greatly appreciated. Long story...

My mom and I came to the United States from Hong Kong back on 1991 with a tourist visa (A 10 year visa issued from HK) and overstayed. at around 1995, my mom applied for the asylum refugee case, so she can get a temporary work permit (NOT EAD - it is called C8 card). And based on the asylum case, if the judge believes or agree with her reason, the judge will grant her the green card, and at the same time, they can issue her the C8 card, so she can work while they are investigating the case..etc...

Due to some family reasons, she has to go back to HK in 1999. So she contacted her lawyer who applied the C8 / asylum for her, to cancel or stop her current case. She never waited until the court date, b/c she is willing to give up the chance of going for it. And the court immediately gave her a "departure notice". So she went back to HK.

SHe stayed in HK for 2 years, and b/c her passport is expiring, so she went to the US embassy, and wants to transfer her 10 year visa onto her new passport. And everything went ok. Then, at around 2001, she tried her luck, trying to see if she will be let back into the united states, so she just bought a plane ticket, using her new passport, which has that 10 year visa on it... and amazingly, she was let in without a problem. After she came back, she stayed here, for a few months, and then went back to HK, (B/c the visa from the US side, was only 6 months)....thru out the course of 3 years, she left and came back to the United States for about 3 times, all without a problem... and she did NOT overstayed for those few times.

The last time she came back to the US, was back in 2004 October, and this time, she overstayed again, until now. So, in summary, she overstayed twice, between 1999 to 2004. Alot of our family relatives said it is very amazing that she can come in and out like that, b/c usually, there is a 10 year bar after you overstayed the first time..etc.. I am not sure why it works for her, but it did. And my mom never have any fake / illegal entry (Meaning, no sneak in or anything like that - it was all thru the US Customs).

Now that I am a united states citizen (Thru marriage to another citizen). I want to apply a greencard for my mom, based on my status. So, we went to the lawyer, and told him the whole story. The lawyer asked me, "why would your mom have a C8 card??" and he said, if she was "forced" to be departed back in 1999, she would have been bar from applying for anything in the united states within 5 years. And when she "transfer" the visa from old passport to new passport, the lawyer is 100% that there is a question on the form, asking, "Have you ever been deported from the united states due to overstayed", but my mom said, someone else filled out that form for her, so she does not know what was the answer to that question on the application form.

The lawyer now is saying, this might be a problem, IF she said NO on the form, that means she lied, and the US might have record, and that she is NOT suppose to come back to the United states for atleast 5 years, and the fact that she did, might raise an issue when the INS people look at her green card application now. Lawyer said, it is a 50/50 chance. There might be INS officer will ignore thatt, or didnt see the history, or dont care about the history, but on the other hand, there migh be INS officer, who will drill down, and create issues...etc...

And if they do raise this as an issue, the FBI will go to the house, and deport here once again, and if they do raise that as an issue, they will deny her case, and she will NEVER been able to get green card again.

I am NOT sure what to do at this point, b/c based on what the lawyer is telling me, it seems pretty dangerous to apply a GC for my mom, based on the situation. But on the other hand, she came in / out of the united states legally, and they never give her any trouble...so shouldn't that be ok!?!?!

ANyone have any suggestions as to what I should do, or how i can get my mom a green card, is greatly appreciated.

I am really in need of advice right now....

Thank you very much in advance..

T

 

[pianoplayer]

Hello All,

I am in need of some good advice, as I am not sure what to do at this point. All responses are greatly appreciated. Long story...

My mom and I came to the United States from Hong Kong back on 1991 with a tourist visa (A 10 year visa issued from HK) and overstayed. at around 1995, my mom applied for the asylum refugee case, so she can get a temporary work permit (NOT EAD - it is called C8 card). And based on the asylum case, if the judge believes or agree with her reason, the judge will grant her the green card, and at the same time, they can issue her the C8 card, so she can work while they are investigating the case..etc...

Due to some family reasons, she has to go back to HK in 1999. So she contacted her lawyer who applied the C8 / asylum for her, to cancel or stop her current case. She never waited until the court date, b/c she is willing to give up the chance of going for it. And the court immediately gave her a "departure notice". So she went back to HK.

SHe stayed in HK for 2 years, and b/c her passport is expiring, so she went to the US embassy, and wants to transfer her 10 year visa onto her new passport. And everything went ok. Then, at around 2001, she tried her luck, trying to see if she will be let back into the united states, so she just bought a plane ticket, using her new passport, which has that 10 year visa on it... and amazingly, she was let in without a problem. After she came back, she stayed here, for a few months, and then went back to HK, (B/c the visa from the US side, was only 6 months)....thru out the course of 3 years, she left and came back to the United States for about 3 times, all without a problem... and she did NOT overstayed for those few times.

The last time she came back to the US, was back in 2004 October, and this time, she overstayed again, until now. So, in summary, she overstayed twice, between 1999 to 2004. Alot of our family relatives said it is very amazing that she can come in and out like that, b/c usually, there is a 10 year bar after you overstayed the first time..etc.. I am not sure why it works for her, but it did. And my mom never have any fake / illegal entry (Meaning, no sneak in or anything like that - it was all thru the US Customs).

Now that I am a united states citizen (Thru marriage to another citizen). I want to apply a greencard for my mom, based on my status. So, we went to the lawyer, and told him the whole story. The lawyer asked me, "why would your mom have a C8 card??" and he said, if she was "forced" to be departed back in 1999, she would have been bar from applying for anything in the united states within 5 years. And when she "transfer" the visa from old passport to new passport, the lawyer is 100% that there is a question on the form, asking, "Have you ever been deported from the united states due to overstayed", but my mom said, someone else filled out that form for her, so she does not know what was the answer to that question on the application form.

The lawyer now is saying, this might be a problem, IF she said NO on the form, that means she lied, and the US might have record, and that she is NOT suppose to come back to the United states for atleast 5 years, and the fact that she did, might raise an issue when the INS people look at her green card application now. Lawyer said, it is a 50/50 chance. There might be INS officer will ignore thatt, or didnt see the history, or dont care about the history, but on the other hand, there migh be INS officer, who will drill down, and create issues...etc...

And if they do raise this as an issue, the FBI will go to the house, and deport here once again, and if they do raise that as an issue, they will deny her case, and she will NEVER been able to get green card again.

I am NOT sure what to do at this point, b/c based on what the lawyer is telling me, it seems pretty dangerous to apply a GC for my mom, based on the situation. But on the other hand, she came in / out of the united states legally, and they never give her any trouble...so shouldn't that be ok!?!?!

ANyone have any suggestions as to what I should do, or how i can get my mom a green card, is greatly appreciated.

I am really in need of advice right now....

Thank you very much in advance..

T

I am sorry to hear about your situation, although I have to say, it could all have been avoided with better planning. And it happened twice!

I do not think that you will find any helpful answers on a newsgroup --- your case most definitely does not fit in a box and raises a lot of problematic issues.

Your attorney is most probably correct in the info he gave you. Very few legal issues, especially a complex one such as yours, have a definite answer. Usually the answer is "maybe" or "that depends". "It should work, but I don't know for sure". Not only is the legal answer unsure, but you are dealing with an element of discretion on the part of the human beings that will handle the application.

Listen carefully to your attorney's advice, examine your needs and then make the best decision you can. No-one can predict exactly how your case will come out.

 

[momgreencard]

hi,

Based on what i see on the 485 application, it says, overstayed will be forgiven if the USC is a direct relative, (i.e. spouse, parenst..etc..).

So, that means the second time my mom overstayed - that will be forgiven.... I think the only thing i need to worry about is, the fact that she was deported, but she came back in the united states again while she was supposed to be barred for 5 years.

My question is, she was deported on 1999, and she came back to 2001. If she was supposed to be barred from the US for 5 years, that means it was supposed to be 2004. Since she came back at 2001, does it mean, that she violated the law for coming back, so they will recount those 5 years.. meaning, 2001 + another 5 years... till 2006.... does the immigration work like this? I am thinking, if it is suppose to be 2006, then that means she can apply for a GC now?

Thanks,
T

 

[chills]

Wow, this is an interesting story.


So weird, also. You know, Immigration laws changed a lot during the time that you guys came here and now. I don't think that 10 year ban applied during the time that you guys initially overstayed which was 1991 to 1995. If it didn't and your mom filed some kind of process for herself after 1995 then maybe it's just the case that those 4 years that you overstayed weren't significantly counted against you. I believe that it was during 1996 that President Clinton signed a law banning people for 3 to 10 years even if they were unlawfully present, even if they have a petition waiting for them.

That would mean that from 1996 to 1999 is when your unlawful status really started counting against your mother as far as her ability to file. But, if she filed around 1995, then maybe she was granted some pardon. The law that Clinton signed grants status to people that are waiting for an adjustment of status.

When your mother was deported in 1999, maybe it wasn't for as long as you're thinking
because she may have had some rights because of the case that she filed in 1995.


Your real problem here is the fact that the document went against what really happened. But then again, shouldn't they have known that she was deported?

I'm not 100 percent sure on everything, but I think that you should take what I said and maybe ask some of those questions to your lawyer. Find out exactly how long your mother was banned from re entering for.


The court gave her a departure notice which I'm guessing is a deportion form, yet she was still able to come back into the country. I'm wondering why she was able to. The only way that I think that she would have been granted a renewal on that visa is if that question was marked as a no. You know? Cause, I highly doubt that they'd renew a visa that would allow her to re-enter here before the 10 year 0

 

[GotPR?]

My question is, she was deported on 1999, and she came back to 2001. If she was supposed to be barred from the US for 5 years, that means it was supposed to be 2004. Since she came back at 2001, does it mean, that she violated the law for coming back, so they will recount those 5 years.. meaning, 2001 + another 5 years... till 2006.... does the immigration work like this? I am thinking, if it is suppose to be 2006, then that means she can apply for a GC now?

Thanks,
T

I wonder how it could happen.
How long did she overstay in 1999 ? And did she not oversay between 1991 and 1995 ? Period of entry bar depends on overstay period.
And Did she answer YES to overstay question in DS-156 when she applied B visa when applied for it in 2001 ?

 

[gc4parents]

Hello All,


Due to some family reasons, she has to go back to HK in 1999. So she contacted her lawyer who applied the C8 / asylum for her, to cancel or stop her current case. She never waited until the court date, b/c she is willing to give up the chance of going for it. And the court immediately gave her a "departure notice". So she went back to HK.

I don't think this is Deportation, she left voluntarely at her own will, even though the court told her that she has to leave when she cancelled the court process.

The last time she came back to the US, was back in 2004 October, and this time, she overstayed again, until now. So, in summary, she overstayed twice, between 1999 to 2004.

The overstay is forgiven for the parents of the USC.

Now that I am a united states citizen (Thru marriage to another citizen). I want to apply a greencard for my mom, based on my status. So, we went to the lawyer, and told him the whole story. The lawyer asked me, "why would your mom have a C8 card??" and he said, if she was "forced" to be departed back in 1999, she would have been bar from applying for anything in the united states within 5 years. And when she "transfer" the visa from old passport to new passport, the lawyer is 100% that there is a question on the form, asking, "Have you ever been deported from the united states due to overstayed", but my mom said, someone else filled out that form for her, so she does not know what was the answer to that question on the application form.

She didn't know then...whay she should know differently now?

The lawyer now is saying, this might be a problem, IF she said NO on the form, that means she lied, and the US might have record, and that she is NOT suppose to come back to the United states for atleast 5 years, and the fact that she did, might raise an issue when the INS people look at her green card application now.

Like I've said before, I don't think she was deported. She departed voluntarely, so I would answer No and if ever the issue comes up, the explain it to the inteview.

Lawyer said, it is a 50/50 chance. There might be INS officer will ignore thatt, or didnt see the history, or dont care about the history, but on the other hand, there migh be INS officer, who will drill down, and create issues...etc...

True...but my bet is 85% to 15% in your mom's favor.

And if they do raise this as an issue, the FBI will go to the house, and deport here once again, and if they do raise that as an issue, they will deny her case, and she will NEVER been able to get green card again.

FBI will never go to your house and deport her.
There are so many other steps before she can be deported (Immigration Judge, Circuit Court...) so is not necessary to worry about this now.

I am NOT sure what to do at this point, b/c based on what the lawyer is telling me, it seems pretty dangerous to apply a GC for my mom, based on the situation. But on the other hand, she came in / out of the united states legally, and they never give her any trouble...so shouldn't that be ok!?!?!

Good chance that they have no record of the 1999 issue.
And since she decided to go back to HK, I wouldn't call that a "deportation"

ANyone have any suggestions as to what I should do, or how i can get my mom a green card, is greatly appreciated.

I am really in need of advice right now....

Thank you very much in advance..

T

Contact at least another lawyer (a good, reputable one) and think about it.

Since over 7 millions Mexicans crossed illegally the border and stay here, I don't see why your mom, who came with a valid visa shouldn't.

 

[pianoplayer]

I wonder how it could happen.
How long did she overstay in 1999 ? And did she not oversay between 1991 and 1995 ? Period of entry bar depends on overstay period.
And Did she answer YES to overstay question in DS-156 when she applied B visa when applied for it in 2001 ?

These are some good questions that have to be asked of the OP --- I am sure her attorney did that. This fact pattern cannot just be reduced to simple math as the OP did in her reply to me --- more information is needed to answer the question fully. Surely, her attorney, given all the facts, laid the situation out carefully for her and made the prediction. While many on this newsgroup can kindly comment and give opinions, none of us can make an accurate call whatsoever without all the information.

 

[momgreencard]

These are some good questions that have to be asked of the OP --- I am sure her attorney did that. This fact pattern cannot just be reduced to simple math as the OP did in her reply to me --- more information is needed to answer the question fully. Surely, her attorney, given all the facts, laid the situation out carefully for her and made the prediction. While many on this newsgroup can kindly comment and give opinions, none of us can make an accurate call whatsoever without all the information.

Hi All,

Thank you for your reply. To answer some of the questions.

1. We came back in 1991 via a tourist visa. The travel visa that we got back in HK was good for 10 years. But when we were at the POE in the US, the visa was only good for 6 months. And we overstayed after that 6 months.

2. So, after coming here on 1991, my mom filed for the C8 card thing at 1995.. then cancel the court process at around 1999, the court DID give my mom a deportation notice. And my mom left, and at the airport, she gave the deportation notice to either the airline staff, or the INS people.

3. While in HK at around 2001, she did NOT apply for another visa -- she wants to "transfer" her existing visa that is on her "about-to-expire" passport to a renewal one. I am not sure if this means "Transfer" - but my mother insist that she did not apply for new one - she was asking the officer simply transfering it onto the new passport. UNLESS embassy do not do "transfer", and that they have to issue a new one instead of "Transfering".

4. My mom did not even know that there was a question about, "Have you ever overstayed - or deported" on the form while she was in the embassy to transfer her visa. B/c someone else filled out the form for her... And there is almost no way to find out... She didnt know such a question exist until the lawyer asked us.

There are a few interesting replies..

Q. There is a reply about the 3/10 year ban did not happenedd back in 1995 - how should I find out more about that? Anyone have any experience in that?

Q. I am not sure if that is a deportation or not - but my mom was given a deportation notice eventho she was the one who wanted to cancel the process.

Q. Can someone elaborate more on the deportation process? Right now, i am afraid that, if her case gets denied, she will be deported... the lawyer said FBI will go to your house and deport people.. Can someone tell me abit more, say, her case is denied, then whats next before she was really being deported??

Thansk,
T

 

[momgreencard]

I went to another lawyer today.... i explained the whole situation to him, and this is what he said.

He does not think there will be any issue getting a GC for my mother.

The fact that she left on 1999, and coming back on 2001 using the same visa. That means there is no reentry bar for her. If there was a bar - she would not been able to come back in. The reason why there is no bar - it could be b/c it is a volunteer deportation. So the Bar does not exist for her at that time.

Then when she left on 8/2004 and came back on 10/2004, after overstaying for another 2.5 years since 2002. The fact that she can use the SAME visa / SAME passport to get in, without any problem from the POE - the lawyer said he does not know why it could happen. But he said, he is sure that, Re-entry bar is only for Barring people from outside, not inside. ONce my mom is inside, thru a legal entry - then she can apply for AOS. And since overstayed are forgiven if i am a USC - that will be ok.

BOttom line is, this lawyer said, he is 95% sure it will be ok to apply. The law only said, "unless you did not enter US legally", otherwise, you can apply GC for immediate relatives if you are a USC.

And he said, "In the case, for whatever reason, her case is denied - there are many many steps that she can take before she can get deported. And they will not go to your house and deport you....

what do you guys think?

Thanks,
T

 

[pianoplayer]

I went to another lawyer today.... i explained the whole situation to him, and this is what he said.

He does not think there will be any issue getting a GC for my mother.

The fact that she left on 1999, and coming back on 2001 using the same visa. That means there is no reentry bar for her. If there was a bar - she would not been able to come back in. The reason why there is no bar - it could be b/c it is a volunteer deportation. So the Bar does not exist for her at that time.

Then when she left on 8/2004 and came back on 10/2004, after overstaying for another 2.5 years since 2002. The fact that she can use the SAME visa / SAME passport to get in, without any problem from the POE - the lawyer said he does not know why it could happen. But he said, he is sure that, Re-entry bar is only for Barring people from outside, not inside. ONce my mom is inside, thru a legal entry - then she can apply for AOS. And since overstayed are forgiven if i am a USC - that will be ok.

BOttom line is, this lawyer said, he is 95% sure it will be ok to apply. The law only said, "unless you did not enter US legally", otherwise, you can apply GC for immediate relatives if you are a USC.

And he said, "In the case, for whatever reason, her case is denied - there are many many steps that she can take before she can get deported. And they will not go to your house and deport you....

what do you guys think?

Thanks,
T

Your post confused me --- why do you say she has a "PERMANENT VISA" - what is that? Was she an immigrant or non-immigrant? Does not make sense, since you speak of overstay.

Your attorney's advice seems good -- notice how he tells you 95%. No-one can tell you for sure. I dont really understand why you keep asking people on this newsgroup. You've received what appears to be a good opinion from an attorney --- either decide to follow it or do what you think is best. I sincerely doubt anyone here will offer you any better.

Best wishes and good luck

 

[gc4parents]

I went to another lawyer today.... i explained the whole situation to him, and this is what he said.

He does not think there will be any issue getting a GC for my mother.

The fact that she left on 1999, and coming back on 2001 using the same visa. That means there is no reentry bar for her. If there was a bar - she would not been able to come back in. The reason why there is no bar - it could be b/c it is a volunteer deportation. So the Bar does not exist for her at that time.

Then when she left on 8/2004 and came back on 10/2004, after overstaying for another 2.5 years since 2002. The fact that she can use the SAME visa / SAME passport to get in, without any problem from the POE - the lawyer said he does not know why it could happen. But he said, he is sure that, Re-entry bar is only for Barring people from outside, not inside. ONce my mom is inside, thru a legal entry - then she can apply for AOS. And since overstayed are forgiven if i am a USC - that will be ok.

BOttom line is, this lawyer said, he is 95% sure it will be ok to apply. The law only said, "unless you did not enter US legally", otherwise, you can apply GC for immediate relatives if you are a USC.

And he said, "In the case, for whatever reason, her case is denied - there are many many steps that she can take before she can get deported. And they will not go to your house and deport you....

what do you guys think?

Thanks,
T

I swear I didn't speak with this lawyer...but his answer is almost identical with what I told you a few posts before.

Sounds right to me.

For your peace of mind you can try the 3rd opinion too.

Good luck.

 

[GotPR?]

Visa validity is quite questionable(if non-immigrant visa is concerned. Not sure what the permanent visa is) according to INA Section 222(g). So, how the current stay is considered is very tough to predict.
And here is related words from Foreign Affair Manual from DOS.

http://foia.state.gov/masterdocs/09fam/0940068R.pdf
http://foia.state.gov/masterdocs/09FAM/0940068N.PDF

I wonder what lawyer said regarding this provision.

Regarding GC, I think you may not find clear answer until you actually try.

 

[pianoplayer]

Visa validity is quite questionable(if non-immigrant visa is concerned. Not sure what the permanent visa is) according to INA Section 222(g). So, how the current stay is considered is very tough to predict.
And here is related words from Foreign Affair Manual from DOS.

http://foia.state.gov/masterdocs/09fam/0940068R.pdf
http://foia.state.gov/masterdocs/09FAM/0940068N.PDF

I wonder what lawyer said regarding this provision.

Regarding GC, I think you may not find clear answer until you actually try.

There is very little clarity at this point. It sounds like the attorney's advice is on the right track to me, but there are no guarantees.

I wish the OP would clarify "permanent visa" --- her facts are muddled, and it makes it hard to even make an educated guess. I do stick by my first viewpoint however, that this is not really a question appropriate for a general audience to answer. It is a good law examination question, but raises far too many complicated issues to be analysed and researched --- not suitable for a layperson to answer on the spot.

Now I am quite sure I will get some people next who will want to chop off my head for dicating what should be asked on a forum and what not. To which I would politely say, go ahead, ask here, but getting the "right answer" and clarity ---- very unlikely.