My comments on “Steamboat family hoping for changes to citizenship regulations” – Article by Mike Lawrence of Steamboat Today

09/25/2010


A well written article by Mr. Mike Lawrence of Steamboat Today sheds light on a dilemma faced by all dependent children of E-2 (and other) nonimmigrant visa holders.  Once a nonimmigrant visa holder’s child reaches 21 years of age, the child may no longer retain a dependent visa based on a principle parent’s status and must obtain an independent status or visa within the US, regardless of how long they have lived in the U.S.  The subject of Mr. Lawrence’s article, Mr. Mark Dennis, 19, has lived in the US since he was approximately four months old.  

As indicated above, affected individuals do have the option to change their status/obtain a different visa, F-1 (student) for example, which is a popular option in these situations.  F-1 status would serve as a good option for Mr. Dennis, who presently attends the University of Colorado in Boulder.  Mr. Lawrence does mention the student visa option, but states that “…under current law [Mr. Dennis] would have to return to England…” and that once there, “…current law states he would have to develop strong ties there — through property ownership or employment, for example — before a potential return to CU on an international student visa…” 


To summarize, Mr. Lawrence appears to incorrectly indicate that only two potential solutions exist for Mr. Dennis’ dilemma, 

1. The DREAM Act , which has been kicking around DC for years (only to be dusted off, raised high and carried into the spotlight come election season).  This years incarnation was defeated again recently, and so unfortunately remains only (and literally) a dream, or,
2. Mr. Dennis returns to the UK, a country with which he is “unfamiliar“, and acquire property ownership and/or employment and then possibly return to the US with an F-1 student visa after an interview with a U.S. Consular officer in the UK.  (See my 2005 blog entry about this option – and the dreaded 214(b) of the INA.)

Mr. Lawrence has not included the best option for Mr. Dennis,

3. File an I-539 Change of Status petition – from E-2 dependent to F-1 Student – prior to Mr. Dennis reaching 21 years of age.  There is a $300.00 petition fee payable to the Department of Homeland Security.  Mr. Dennis would have to obtain an I-20 from his University DSO, which could take as little as 20 minutes using the computerized SEVIS system.  His school appears to be SEVIS accredited and able to provide this certification.  He would attach a photocopy of his passport, his latest E-2 dependent paperwork and signed documentation from a financial guarantor.  Finally, he would mail the full package to the applicable USCIS service center and wait a few months for an adjudication.  While there is no guarantee of approval for this or any other petition before USCIS, the chances for approval are generally high, especially if the case is well documented.  Mr. Dennis has approximately two years to file this petition for change of status (until the age of 21).

The central issue raised by the article, i.e., the substantial and positive impact the DREAM Act would have for affected young people (and I think, our society as a whole,) deserves greater prominence in politics and the media.  With respect to Mr. Dennis, and in no way attempting to diminish his problem, it is important to include in my comments a short reference to those 19 year olds with no options, for example, a child of an undocumented immigrant.  While an undocumented parent’s unlawful entry into the U.S. is presently not imputed to the child of said immigrant, if the child is not able to secure University admission and file a petition for a student visa by their 18th birthday (most children would be still attending high school), they will immediately begin accruing unlawful status.  It is extremely difficult to obtain a waiver or an approved change of status if the child has any length of unlawful status.  180+ days of unlawful status and the child is barred from re-entering the U.S. for three years, 365+ days of unlawful status and the child is barred for ten years.  The child now is now a 19+ year old young adult with few options and little hope.  With few exceptions, she may not be change her status nor leave the U.S. for fear of the 3/10 year bar.  The DREAM Act could provide these young people, [along with Mr. Dennis] with a real solution.

Ashwin Sharma
Immigration Attorney

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