Questions for parent with criminal records :(

[curiousfox 1]

Alright y’all, here’s a bit of a tricky one. I’m hoping someone can help my family out.

 

My family consists of:
Me: Taiwan born, Taiwan Citizen, US Citizen (Naturalized)

Mom (65+): Taiwan born, Taiwan Citizen, US Citizen (Naturalized)
Dad (70+): Taiwan born, Taiwan Citizen, Previously US GC holder / LPR, later had to give this up due to length of no entry

 

The situation:
My parents currently live primarily in China, and have done so for about 10+ years. My mom and I would like to reapply for my dad to receive his green card again because they would like to move back to US at some point.

 

The issue:
My dad has criminal records in China due to tax evasion of imported goods (it was nothing bad like narcotics or arms, etc. — think raw materials), and due to his trial and later sentence, he was away from US for over 5 years. When he reentered US when he could, CBP had him file a I-407 on the spot to give up his green card and admitted him into the US.

 

The question:
I think I just want a general idea of how likely is it for my mom to file an I-130 for him abroad (from China or Taiwan through AIT) and for him to be accepted at the I-485 stage. I don't think they qualify for any circumstances under DCF, he is in decent health thankfully.

 

I’ve had a look, and his answers under Criminal Acts and Violations would be “no” to most of them except for questions 26-29. We have all the court documents in Chinese that we will translate, but also I’m a little concerned because the crime was phrased as “smuggling” in his official court documents. He was never denied entry or deported from US, and has come to US a few times as a tourist (never over-stayed) since his probation in China ended, but he will not be able to get a Police Certificate of Non-Criminal Record in China. We are also in the process of speaking with lawyers stateside, but wanted to get some opinions here too.

 

Thanks everyone.

 

 

[SteveInBostonI130 3,434]

There is no I-485 stage for consular processing.

 

You should file the I-130 for your father, category IR5.  Your mom may have issues showing proof of US domicile, which is one of the requirements.

 

Total processing time is about 2 years.   There have been reports of recent I-130s getting approved in 90 days, which would make the overall process 6-8 months.

 

[curiousfox 1]

Hi @SteveInBostonI130, thanks for your response.

 

Quote

There is no I-485 stage for consular processing.

I was jumping ahead to the stage after I-130, since I'm fairly confident we won't have any issues with the initial I-130 filing

 

Quote

You should file the I-130 for your father, category IR5. 

Is there any difference between me filing it for my father or my mom filing it for her husband? I have heard filing for spouses are easier? They have been married for over 30+ years.

 

Quote

Your mom may have issues showing proof of US domicile, which is one of the requirements.

She has US bank accounts, address, and state ID still

 

Quote

Total processing time is about 2 years.   There have been reports of recent I-130s getting approved in 90 days, which would make the overall process 6-8 months.

Thank you, it's really not so much the processing time that's concerning, but his previous criminal records (conviction was back in 2010),  and the I-407 that's more concerning whether we'd be successful this time around.

 

Edited June 27, 2023 by curiousfox
Formatting

[Redro 4,611]

25 minutes ago, curiousfox said:

 

I was jumping ahead to the stage after I-130, since I'm fairly confident we won't have any issues with the initial I-130 filing

There is no I-485. If your father was INSIDE the US. You would file I-130 and I-485 and I-864 at the same time. Because he will consular process he will need to complete the DS260 NOT the I-485. 

25 minutes ago, curiousfox said:

Is there any difference between me filing it for my father or my mom filing it for her husband? I have heard filing for spouses are easier? They have been married for over 30+ years.

 

44 minutes ago, SteveInBostonI130 said:

You should file the I-130 for your father, category IR5.  Your mom may have issues showing proof of US domicile, which is one of the requirements.

 

26 minutes ago, curiousfox said:

She has US bank accounts, address, and state ID still

 

Listen to @SteveInBoston. If your mother files for your father she will have to  submit an I-864. Has she been filing US taxes for the last 3 years (at least). The bank accounts, address and state ID will be fine for NVC stage but the consulate might want your mother to 1.) move to the US before your father or 2.) see proof she has made concrete plans to move to the US (and it should not be dependent on your father receiving the visa). As you currently live in the US and can sponsor your father. It would be simpler than having your mother file an I-864 and you filing as joint sponsor ( a second I-864).

 

27 minutes ago, curiousfox said:

Thank you, it's really not so much the processing time that's concerning, but his previous criminal records (conviction was back in 2010),  and the I-407 that's more concerning whether we'd be successful this time around.

 

The I-407 is not an issue. This allows him to be petitioned for another visa. If his criminal records are an issue and he requires a waiver- your mother's domicile once again becomes important. She will most likely have to show she cannot live in China due to hardship and they must move to the US. 

 

If moving to the US isn't that important and your parents would just like to visit. I suggest filing for a B1/B2 tourist visa. 

 

 

[SteveInBostonI130 3,434]

1 hour ago, curiousfox said:

 

I was jumping ahead to the stage after I-130, since I'm fairly confident we won't have any issues with the initial I-130 filing

 

Thank you, it's really not so much the processing time that's concerning, but his previous criminal records (conviction was back in 2010),  and the I-407 that's more concerning whether we'd be successful this time around.

 

 

The stage after I-130 is the NVC stage, not I-485.  

 

From what you described, you're father's conviction may make him inadmissible, especially if the sentence was more that 1 year in jail.  You will need to wait for the determination at the consular interview.  If he is found inadmissible, you can file the I-601 waiver.  That process is an additional 1-2 years. 

 

Note:  you cannot file the I-601 ahead of time.  You have to file it after he has been found inadmissible.   If it does come to this, I strongly recommend consulting a lawyer.

 

https://www.uscis.gov/i-601

Edited June 27, 2023 by SteveInBostonI130

[SalishSea 17,829]

8 hours ago, curiousfox said:

Alright y’all, here’s a bit of a tricky one. I’m hoping someone can help my family out.

 

My family consists of:
Me: Taiwan born, Taiwan Citizen, US Citizen (Naturalized)

Mom (65+): Taiwan born, Taiwan Citizen, US Citizen (Naturalized)
Dad (70+): Taiwan born, Taiwan Citizen, Previously US GC holder / LPR, later had to give this up due to length of no entry

 

The situation:
My parents currently live primarily in China, and have done so for about 10+ years. My mom and I would like to reapply for my dad to receive his green card again because they would like to move back to US at some point.

 

The issue:
My dad has criminal records in China due to tax evasion of imported goods (it was nothing bad like narcotics or arms, etc. — think raw materials), and due to his trial and later sentence, he was away from US for over 5 years. When he reentered US when he could, CBP had him file a I-407 on the spot to give up his green card and admitted him into the US.

 

The question:
I think I just want a general idea of how likely is it for my mom to file an I-130 for him abroad (from China or Taiwan through AIT) and for him to be accepted at the I-485 stage. I don't think they qualify for any circumstances under DCF, he is in decent health thankfully.

 

I’ve had a look, and his answers under Criminal Acts and Violations would be “no” to most of them except for questions 26-29. We have all the court documents in Chinese that we will translate, but also I’m a little concerned because the crime was phrased as “smuggling” in his official court documents. He was never denied entry or deported from US, and has come to US a few times as a tourist (never over-stayed) since his probation in China ended, but he will not be able to get a Police Certificate of Non-Criminal Record in China. We are also in the process of speaking with lawyers stateside, but wanted to get some opinions here too.

 

Thanks everyone.

 

 

I’d be more worried about your mom’s status if she’s living overseas…..are you not worried about that?

 

There will be no I-485 for consular processing.

 

Doesn’t sound like his convictions were CIMT, but could definitely prolong the process.   Start by getting translated copies of  ALL of the court documents.

[jan22 3,053]

You mentioned that your father has visited the US after his probation ended.  Has he visited after filing the I-407 and giving up his green card?  If so, I assume he was then issued a B2 tourist visa.  If so, did he mark "yes" to the DS-160 questions on arrests/convictions?  If he did, and it was discussed during that interview, it appears that the consular officer has determined that his criminal record did not make him ineligible and, therefore, issued the B2 visa.  So, it shouldn't cause an issue now.  If he did apply for a visa after the conviction and did not reveal the conviction on the application it could further complicate his case now.

 

If you choose for your mother file a petition for him, she will have to either move back to the US ahead of him or present information that clearly shows her intent to re-establish domicile in the US after 10 years of living abroad. 

[curiousfox 1]

37 minutes ago, SalishSea said:

I’d be more worried about your mom’s status if she’s living overseas…..are you not worried about that?

Hi @SalishSea – could you please clarify what you mean by this?

 

38 minutes ago, SalishSea said:

There will be no I-485 for consular processing.

Yes, I realize this now! Thanks also to @SteveInBostonI130 and @Redro on shedding light on this. I think I was confusing spousal and parental visas thinking they're the same process.

 

39 minutes ago, SalishSea said:

Doesn’t sound like his convictions were CIMT, but could definitely prolong the process.   Start by getting translated copies of  ALL of the court documents.

I will do this ASAP. Looks like USCIS doesn't have any approved translators so long as the translations follows their critiera, is this correct?

 

21 minutes ago, jan22 said:

You mentioned that your father has visited the US after his probation ended.  Has he visited after filing the I-407 and giving up his green card?  If so, I assume he was then issued a B2 tourist visa.  If so, did he mark "yes" to the DS-160 questions on arrests/convictions?  If he did, and it was discussed during that interview, it appears that the consular officer has determined that his criminal record did not make him ineligible and, therefore, issued the B2 visa.  So, it shouldn't cause an issue now.  If he did apply for a visa after the conviction and did not reveal the conviction on the application it could further complicate his case now.

So, this I'm not too sure. I believe he never needed a B2 tourist visa because Taiwan falls under visa-free/ESTA for visitors and he's never stayed more than three months since he first returned after filing I-407. I'm not sure about DS-160, I will have to ask him. Thanks for highlighting this!

 

Also just want to say a big thank you to everyone's help so far, I'm learning a lot!

[Redro 4,611]

9 minutes ago, curiousfox said:

Hi

So, this I'm not too sure. I believe he never needed a B2 tourist visa because Taiwan falls under visa-free/ESTA for visitors and he's never stayed more than three months since he first returned after filing I-407. I'm not sure about DS-160, I will have to ask him. Thanks for highlighting this!

 

Also just want to say a big thank you to everyone's help so far, I'm learning a lot!

So, your father has been traveling to US using ESTA for the past 10 years… 

Does this mean he answered NO to the arrest or criminal history question…? 

You worry about him being inadmissible for an immigrant visa but this admissibility also applies to ESTA and B1/B2… 

Edited June 27, 2023 by Redro

[SalishSea 17,829]

57 minutes ago, curiousfox said:

Hi @SalishSea – could you please clarify what you mean by this?

 

Yes, I realize this now! Thanks also to @SteveInBostonI130 and @Redro on shedding light on this. I think I was confusing spousal and parental visas thinking they're the same process.

 

I will do this ASAP. Looks like USCIS doesn't have any approved translators so long as the translations follows their critiera, is this correct?

 

So, this I'm not too sure. I believe he never needed a B2 tourist visa because Taiwan falls under visa-free/ESTA for visitors and he's never stayed more than three months since he first returned after filing I-407. I'm not sure about DS-160, I will have to ask him. Thanks for highlighting this!

 

Also just want to say a big thank you to everyone's help so far, I'm learning a lot!

He would still have had to disclose the conviction.

 

You may need a lawyer.

Edited June 27, 2023 by SalishSea

[carmel34 3,626]

2 hours ago, curiousfox said:

Hi @SalishSea – could you please clarify what you mean by this?

Mom is a US citizen, so I'm not sure what @SalishSea meant by the comment about her status living in China.  It could be related to her status as a non-US resident for purposes of sponsorship (I-864), which requires US domicile or at the very least, evidence of intent to re-establish US domicile.  Has she been filing US tax returns since she naturalized?

[Boiler 45,489]

The criminal record is the thing that could cause concern, if you are the one that files, makes more sense, then your Mother can still use her hardships if a waiver is needed.

[SalishSea 17,829]

2 hours ago, carmel34 said:

Mom is a US citizen, so I'm not sure what @SalishSea meant by the comment about her status living in China.  It could be related to her status as a non-US resident for purposes of sponsorship (I-864), which requires US domicile or at the very least, evidence of intent to re-establish US domicile.  Has she been filing US tax returns since she naturalized?

Oops, sorry, misread and thought mom was an LPR.

 

Even so OP, she cannot sponsor him while being domiciled overseas.  You will also want to consider whether he will qualify for Medicare, and if not - have a plan in place for his health care coverage.

[jan22 3,053]

5 hours ago, curiousfox said:

. . .

 

So, this I'm not too sure. I believe he never needed a B2 tourist visa because Taiwan falls under visa-free/ESTA for visitors and he's never stayed more than three months since he first returned after filing I-407. I'm not sure about DS-160, I will have to ask him. Thanks for highlighting this!

 

Also just want to say a big thank you to everyone's help so far, I'm learning a lot!

Sorry -- I missed the birth in Taiwan part of your post.  But, as @SalishSea said, the conviction would have to be reported on the ESTA application.  Frequently, with a criminal conviction, USCIS will deny ESTA and require the person to apply for a visa so it can be reviewed.  Something to ask him about to know how to proceed, IMO.

[curiousfox 1]

14 hours ago, Boiler said:

The criminal record is the thing that could cause concern, if you are the one that files, makes more sense, then your Mother can still use her hardships if a waiver is needed.

On 6/27/2023 at 1:06 PM, Redro said:

The I-407 is not an issue. This allows him to be petitioned for another visa. If his criminal records are an issue and he requires a waiver- your mother's domicile once again becomes important. She will most likely have to show she cannot live in China due to hardship and they must move to the US. 

 

Just because it was mentioned a few times, could someone please clarify what hardship means in this situation for my mom (USC)? Thank you.