Maintaining Green card
By
Rajiv S. Khanna
July 20th, 2012
15.55 Minutes
I wanted to record a video at the request of a community member who is a senior, a parent of a US citizen. They come and they visit. A lot of people are in this situation. When parents come and visit, are they required to continue to stay here for a certain time? How does the naturalization process work? It is a difficult topic because it has many components.
Let me start by giving you an overview of the way maintaining permanent residency in the USA works. Let’s begin with this flow chart. What does the law require if you have a green card? The law requires you to have a permanent home in the USA. There is no artistic definition of what “permanent home” is. If you in fact live in the USA, your permanent home is USA.
I’ll get to the specific questions in a minute. I just want to talk about the law in general.
Your permanent home must be USA. There is no artistic definition of permanent home. The simple question is “Where do you live?” If the answer is, “I live in USA,” you’re okay. That’s the first step. But what about taking a trip outside USA? Is it a one-time trip or infrequent trips or do you go every year for a couple of months or a month? That’s not a problem. But what if you are going every year for five months, frequent trips that you repeat every year? At some point, USCIS can raise a red flag on that. Because the question is, are you really living in USA or are you really living in your home country? If there is a pattern, even though the pattern involves travel of less than six months in a 12-month period, but it’s a pattern that has existed for a long time, a few years, they can raise an objection, and they can ask you where you live.
One thing I want to add. If a green card holder shows up at the US airport, the government has to let them in, even if they are claiming abandonment. Government has to let them in and they can lift the green card and they can say they are taking away your green card, and you have to report to immigration court on a given date, but it’s not like they can you turn you back at the airport.
Going back to what we were talking about, frequent trips or a pattern of trips. What if my trip is less than six months? Usually, there is no problem. Any year you want to go out for five months or 5 ½ months, it’s not a problem for your green card, not a problem for your naturalization, unless there is a pattern. If there is a pattern, then they can start creating issues.
What if the trip is less than a year but more than six months?
That can require an explanation at the airport. There is actually a technical term called “entry.” A green card holder who has been gone less than six months is not really seeking entry. They are not considered to be subject to a bunch of technical requirements that people would be if they were gone for six months or more.
If you are gone for more than one year outside USA without reentry permit, if you don’t have a reentry permit form like I-131 and N-470? These are two forms that help you preserve your green card. N-470 helps you preserve your stay outside USA for naturalization if you are engaged in missionary activity, working for the US government, or involved in advancing international trade on behalf of a US company. It doesn’t apply to many people, especially to parents who are coming or are retired or if they are just coming for a few months in a year. For them, it doesn’t really apply. But a reentry permit protects you, not a hundred percent, but to a certain extent against an allegation by the government that you have completely abandoned your permanent residence. If you are outside USA for more than one year without reentry permit, your green card is gone.
What to do if you have been outside USA for more than one year without reentry permit?
There are only two choices. You can apply for a returning residence visa through the consulate in your home country. It is also called SB-1 visa. There, you have to explain in quite some detail what the genuine reason was for your inability to return to USA within one year. Then it is discretionary upon the consulate whether they are convinced by the genuineness of your response or not. If you have been outside USA for more than one year, your green card is gone. If you can get a returning resident visa (SB-1 visa), then you can come back. Of course, your son or daughter can apply for a green card again. If you unfortunately have a green card through a brother or sister, that will take 13 years again. That’s the way you can get your green card back.
The next question I have been asked a lot. Yesterday, no less than three people asked me the same question.
What if I surrender my green card? Will I easily be able to get certain visas like B-1, B-2 (tourist, business), F-1(student), and J-1 (exchange visitors)?
The answer is we don’t know. On the one hand, the fact that you have given up your green card should be considered the ultimate proof that you don’t want to live in US. But government can sometimes ignore that and consider that to be actually a negative point that you had a green card and maybe you are trying get back into USA. Sometimes you can have a problem getting B, F, or J type visa. Of course, for certain kinds of visas for which immigrant intent or intent to live in USA is not an issue, like H-1, H-4, L-1, L-2 visa, you would not have any problem getting those.
That’s what I wanted to cover in the way of the general law. Now I want to show what USCIS says about this. I extracted this from the USCIS website. USCIS says if you do anything which makes you removable, for example, if you commit a crime, etc., which is not a problem for us. But then they talk about abandoning permanent residence. If you move to another country intending to live there permanently, one of the things that USCIS looks for, not just in case of parents, in case of any immigrant who is outside USA, if you leave your job and get another job outside USA, that is a sure indication that you have abandoned your permanent residence in USA. Also, if your family is living in your home country and not USA, then USCIS can consider that also to be evidence that you have abandoned your permanent residence in the USA. If you remain outside the USA for more than one year, I’ve already covered that.
If you fail to file an income tax return while living outside US for any period or you declare yourself a non-immigrant on your tax returns, you will lose your green card. But what if you are not required to file tax returns? That’s one of the questions the gentleman who sent me an email asked me. Am I required to file an income tax return? I don’t know where that observation from USCIS comes from, because, the way I see it, if IRS does not require you to file a tax return, you shouldn’t be filing one. There is not a problem. I looked up at the IRS publication P-4588. The part that I highlighted. If you have a US green card, if you are a lawful permanent resident, even if you are a US green card holder for only one day in that year, you have to file income taxes, except when your gross income from worldwide sources is less than the amount that requires a tax return to be filed. If your income is below a certain level, I do not see why you should be required to file a tax return. In my view, the information on USCIS website is a little misleading. It does not provide for those cases where a tax return is just not required to be filed. That’s the way I see it, but I’m no tax expert. I would readily admit that. In my view, it is not required.
Now, going through the questions that our respected community member has.
Can the green card holder travel to their native country for 160 to 170 days?
As I said, as long as you are maintaining your permanent home in USA. The question is what is a permanent home for somebody who lives a few months here and few months in the home country? Difficult for me to say. Maybe a separate bedroom for you in your children’s house, if you’re living with a child, maybe your bank account, or if you have your driver’s license. Anything that a person who is living in USA permanently would do will strengthen your case. If you have a pattern of going back to your home country for a few months every year and it is 160-170 days, which is just short of 180, it appears to USCIS that maybe you are not really seriously maintaining your green card. That’s what I would be worried about. However, if you have other indications that you are actually living permanently in USA. Again, this is not a term of art. There isn’t anything here that I can say that is very scientific or artistic or esoteric that I can explain to people. It is just common sense. Whatever a normal person does. By normal, I mean you, for example. What would you do, sir, if you were living in USA? What kind of amenities would you create for yourself? Would you rent your own house? Buy your own house? Whatever it is that you would normally do. If you follow that through, I think you have a fairly good chance of surviving any challenge by the government that you have abandoned your green card. By the way, for naturalization also, if the green card has been abandoned at any point in time, there can be no naturalization.
Question #2. 99 percent of parents are dependent on their children. Is it necessary to file income tax returns?
In my view, no. If IRS doesn’t require you to file tax returns, I don’t see how USCIS can. In my view, you should not have to file tax returns, if, under the rules of IRS, you’re not required to.
May you file no taxable income? I don’t know how to do that. You have to ask your CPA.
Will it affect for filing the naturalization process? I haven’t done extensive research on this issue of tax returns, but, just from what I saw in a couple of minutes of review, it didn’t appear to me that a tax return should be required. If you want to be even more sure, what you can do is contact your Congressman’s office here in USA and just tell them to find out the answer for you definitively.
I am unaware of the source of this requirement. I don’t see where USCIS says you’ve got to file taxes. What if the law doesn’t require you to?
So, go to your Congressman’s office. They might be able to confirm.
I don’t want to spend a whole lot of time trying to resolve this issue, which is, in my view, a marginal issue.
Third question--Can they continue to hold green card for seven to eight years and, in the ninth year, file for naturalization?
The answer is yes. As long as you meet the requirements for naturalization and you have not abandoned your green card, you are okay.
That’s pretty much all I have to add to this. You folks with follow-up questions, go ahead and send us emails or join our community conference calls. We’ll take it up there.
Thank you, everybody.
This video is available on immigration.com at Requirements for Naturalization in USA (Forms I-131/N-470)
It's not over till it's over...but it sure is darn close!
So, had my interview today...and in sharp contrast to all the horror interview stories I read here, my interview was like from another world. Had the nicest, kindest elderly gentleman one could find, he referred to me as son a few times, and right upfront said that it will be over in a few minutes. Also said that I was lucky to find the easiest lot of civics questions (apparently they have a set of 10 and I got the easy one).
The Office of Foreign Labor Certification has posted updated program factsheets containing the FY 2012 selected statistics for the:
The OFLC has created a web page from which users can access performance data including Annual Reports, Selected Statistics by Program, and Disclosure Data.
To view this page, click here.
I had a brief telephonic consultation and Resume review with Mr. Khanna. He seems like very through and knowledgable attorney. He provided me right information and suggestion as what should be the next step to follow and in which category my GC petition has more chances to get approved. This is all within 15 mins of consultation and that too with no charge/fee. I would strongly recommend him and his firm. - Pallav
Mr.Khanna is very knowledgable with his work,very humble,least arrogant, never panics us. He studies the case and sees the facts we give and gives us an honest review of our situation.I have seen other lawyers right from the day we landed in the country who keep us in the dark,get the work done for the moment- we are not known of the implications as we are just as new to everything legal. Our lives and existence in the US depends on immigration status and we cannot afford to risk it Thanks again Mr.Khanna !
WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today launched its online Multilingual Resource Center, a new feature on www.uscis.gov. The center provides a central location for USCIS resources in a variety of languages, to include - Haitian Creole, Polish and Vietnamese.
Press Statement
Office of the Spokesperson
Washington, DC
July 26, 2012
Question: Is the issuance of a waiver during the visa process protected under visa confidentiality as part of the visa process?
Answer: Yes, we maintain waiver requests and decisions as part of our visa records, and visa records are confidential under Section 222(f) of the Immigration and Nationality Act (INA). For the purposes of INA Section 222(f), a “record” includes information or documents pertaining to an individual visa applicant.
A “record” may consist of:
DHS secretary Napolitano testifies before Homeland Security House Subcommitt on NEXUS and Visa Waivers.
Please check the attached document.
(Click on links under the second column to download the recordings)
Rajiv S. Khanna, US Immigration attorney provides free immigration help by hosting a free community conference call for US immigration related questions every other Thursday. You can post questions for the call if you are a member of our Immigration forums. Membership is immediate and free for life. (Click here to register ).
Mr Khanna, Once again, your humble nature along with your intellegence / vast knowledge and experience sets you apart from other immigration lawyers! Thank You!
I have worked with Mr. Khanna' Law Firm for over 12 years now, in many ways, either through having my questions answered (when I was still a student), to getting my work visa done, or most recently, for visitor' visa inquiries / clarifications. Mr. Khanna and his team, have ALWAYS provided me with their valuable time and advice very graciously. Their 15 minutes of a conference call time to answer / address a question / issue, mean a lot to people who are on the receiving end. While there are many Lawyers / Attorneys who provide such services to their communities, I hardly know of ANY Law Firm who do so regularly, have done so for many, many years, and will continue to provide such services even in the future, including to those who are NOT their clients. There could be many instances when an individual is not able to pay the consultation fees. If it is not an abuse of his time and a genuine, sincere request has been made, Mr. Khanna and team WILL work out a way to provide those consultation services free of cost. Why so? Because, this is THEIR PASSION, ... to help people in the community. I personally admire this gesture and professionalism.
Very recently, I had specific and some general questions regarding B-2 visa RFE's for my Mother, who has been here under medical and humanitarian grounds, for quite a few years . This being the 2nd RFE that I have received, put me into some worries, questioning the Agency' motives as to why such RFE' after so long when all the required documents were handed to USCIS each time the application/petition was sent for a renewal. Clearly the Agency wants to get a clear picture about my Mother' health condition, and the costs associated with that and who is paying for her support so that she doesn't become a public burden. Her health condition doesn't allow for her to travel and the notion of her separation from me, due of the care that I give to her, makes her physical condition worse. Not to mention, that the most recent economic downturn has put me into some dire situations, conditions to provide for medical support. She did receive state' help for her medical expenses recently. I'm worried for this situation, which I wasn't earlier. It was for this reason, I contacted Mr. Khanna, and he provided me with his valuable answers, the best approach to answer such RFE, and what to do next.
I CANNOT thank Mr. Khanna and his whole team much. It was so nice to have talked with Rena W. after many years, and to know that some of the team members, like Ana B. with whom I had worked earlier, are still there, providing their excellent services.
I was first referred to Mr. Khanna by one of my friends, who also got his work visa and permanent residency done through Mr. Khanna. I can certainly refer anyone, to Mr. Khanna' Immigration Offices, to receive excellent and prompt services, anytime, without any hesitation.
Thank you for all that you do, for the community and its people. My very best wishes.
Department of State online resource where people can select a U.S. embassy or consulate by city or country for specific wait time information, which includes typical wait times for interview appointments and visa processing.
Please click here to view the link.
As of July 29, 2012, all non-immigrant visa applicants must fill in the DS 160 application form and pay the MRV fee through purchase of a mandat compte before scheduling an appointment. The reference numbers of both the DS 160 and the mandat compte must be provided at time of scheduling.
Important notice
[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Notices]
[Pages 44642-44647]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18552]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
[Docket No. DHS-2012-0045]
My application was strong but my interview was weak and I slipped on a question or two. Towards the end of the interview, the asylum officer was very quiet and cold and when I told him that I would send him the document he requested he seemed like he didn't care. Do you think that means he is going to deny my application? How many days did it take for you to get your decision by mail
Hi All,
Sorry for the delay in posting about my experience.
As some of you know, I filed in August 2007 and got stuck in the front-log, and was unable to do my finger prints until December 2007. However, luckily, my interview was scheduled right away for March 2008.
In Buffalo, we do not have same day oath, so I knew going in that I would not be sworn in the same day. I did know however, that I would get the oath notice right away (on the spot) if I passed, because they hold ceremonies every 2 weeks.
AC21 Green Card Portability after 180 days of I-485 Pendency - Part 1
Recorded 27 July 2012
Hello, everyone. I want to talk today about AC21. There is a lot of mystery, a lot of mystique. People have been asking questions for a few years now, and I’m still not done answering all of the questions. So I thought I’d just record this for you and hopefully I’ll cover most of the issues that I remember. In case I am missing something, let me know. Of course, this is just the first part. I intend to do several parts on this AC21 issue. If you have any follow up questions, you are welcome to send us an email through the Contact Us form on www.immigration.com
What exactly is AC21?
AC21 is an abbreviation for a law called American Competitiveness in the Twenty-First Century Act. I think the law was enacted by Congress back in October 2000. So the law has been in effect for fully 12 years, and USCIS has still not given us regulations. It’s very important to have regulations. If you do not have regulations, we have only the bare bones of the law. In IT industry, you think of it as having just a high-level design. We do not have any user interface, we do not have any functionality program, we do not have the code, and we do not really know what the law will really look like in implementation. The last comprehensive interpretation of AC21 was back in May 2005 through something called the Yates Memorandum, given by William R. Yates, which basically answered a lot of questions, but there are still a lot left unanswered.
What is AC21’s effect on H-1?
Basically, this allows you to get H-1 extensions beyond six years; it allows you to change jobs while the H-1 transfer is pending. I’m not discussing this now. I want to focus on Green Card. I will address H-1 later.
AC21 effect on Green Card
Every EB-2, EB-3, and some EB-1 holders can change to a same or similar job as described in their Green Card with any employer anywhere in USA. You are not geographically restricted. If your green card was filed in Colorado, you can move to California or Washington, DC. What is required is the jobs be same or similar.
Your I-140 has been approved, and your I-485 has been pending for 180 days. How are the 180 days counted?
180 days are counted based upon the pendency of I-485, not necessarily after the I-140 has been approved. Let me explain. Let’s say I file your I-140 and I-485 today. After 150 days (five months), your I-140 gets approved, and now your I-485 has been pending 150 days. We only need 30 more days to reach to that 180 day count. In other words, we don’t have to start counting from the date the I-140 has actually been approved. We count based upon how many days the I-485 itself was pending. Once the I-485 is approved, then, by operation of law, we only count what has been remaining of 180 days. Once again, I file today, both the I-140 and I-485. After 150 days, I-140 gets approved. Now I have to wait only 30 more days.
What if I leave before I-140 is approved?
Mr. Yates made it quite clear that, as long as I-140 was approvable when filed, even if you left, it’s not going to affect the merits of your AC21 claim. Once again, if the I-140 was approvable when filed, even if you left, it’s not going to hurt the merits of your AC21 claim, but there is something to worry about.
Does the employer still have the intent to hire me back and I to rejoin?
In other words, what triggers AC21? It is not the approval of the I-140. What if my I-140 and I-485 were not filed together, as happens to a lot of people. Of course, if they were filed together, then remember the 150 days example I gave. Even if you left, the I-140 gets approved. We only have to wait those extra 30 days, and we are comfortable in knowing that we are covered by AC21. But what if my I-140 has been filed, but not my I-485? Then I have to do this analysis. Does the employer have the intention to hire back and I to rejoin them? If so, when my priority date becomes current, I can file for I-485 based upon the letter given by the employer for whom I used to work. If you leave before your I-140 is approved and before the I-485 is filed, you’ve got to have a way to file an I-485 through the employer who has sponsored you, who initially filed for you, who petitioned for you. That means there must be an intention to hire and rejoin.
What if I leave before 180 days are over, but the I-140 is approved?
Now the hypothetical is a little different. Remember the 150 day example. What if I leave on the 150th day, my I-140 is approved, but I am still 30 days short of the 180 days that’s needed for the I-485 to be pending? This hypothetical assumes that both the I-140 and I-485 are concurrently filed. If they were not concurrently filed, then of course the previous analysis--the intent analysis--if the employer has the intent to hire me back, then I can file an I-485. Remember, you can always carry the priority date forward. That’s what we’re talking about. Once the 1-140 is approved, the priority date can be carried forward. We’re talking about AC21. That’s a different law altogether.
If I leave on the 151st day, am I okay?
You are okay as long as USCIS does not start questioning you on the 151st day. Mr. Yates said this. If you have left before 180 days and if you do not have a RFE response due back asking you about your job before the 180 days, you are okay. If I got an RFE before I left and the RFE response is due before 180 days, then the chances are I cannot use the AC21. I can only carry forward my priority date. If you don’t get this, join me in a free community conference call, and I’ll run over your scenario step-by-step.
What if I leave before 180 days are over, but the I-140 is approved, I-485 is pending, and I left during the 151st day? As long as an RFE response is not due before the 180 days, you are okay. It’s fairly safe to assume that you are going to be fine in any of these scenarios where you’ve left before the 180 days are over, because, typically, the RFE itself gives you a few weeks to respond and, by that time, if you’ve thought it over, you can respond with a new job offer.
What if I’ve left, but I don’t have a job for some time? Let’s say you left on the 150th day. Your I-485 pending and I-140 approved, or both are pending, what if you do not have a job for some time? Same analysis applies as long as an RFE response is not due before the 180 days are over. If it’s due before the 180 days are over, you could have some problem. But, if it is not due, you should be all right. If you do not have a job for some time, that’s okay, too.
May I port from a future job?
This is a very interesting analysis. The Yates Memorandum clearly says yes. So I am working for employer A on a H-1, and employer B has filed for my green card as a future job or, maybe even if I used to work with employer B, then I left them, and they continued by green card. It becomes a future job, then I am not working on that job. You can actually file an I-140 and I-485 for a future job and still do an AC21 to any job. You actually never even have to join the future job as long as your intentions were clean when you filed the I-485. So yes, you can port from a future job, and you can even port without ever joining that employer.
May I port to my own company or business?
This is a question I’m asked quite a lot. The answer is yes. It is not forbidden. Why the double negative? I’ll tell you what I’m worried about. When somebody ports to his or her own company or business, one of the most important things is, remember I talked about jobs must be same or similar? This is where the problem occurs. Let’s say your title was Biochemist or IT Engineer or Software Engineer or Systems Administrator. When you start your company, you kind of become the CEO or Manager. That’s not acceptable. That could cause the problem. But what if you have a company your wife is managing, and you’re just an employee? That’s okay. That can be done. So when you port to your company or business, make sure you discuss this in detail with your lawyers. Make sure you understand what you’re allowed to do and what you’re not allowed to do.
The same or similar analysis is very confusing. We don’t have clear understanding. The closest you are to the jobs being the same, the better off you are.
What do I mean by the same job?
What if I was a Java Developer in one job and a .Net Developer in another job? I think that’s okay. This is my interpretation, because you’re still a developer. Nowhere does the law say you must have the same technologies covering both jobs. In my view, you are okay even with different technologies. I’ve never had this view supported by the government, so consider this my guess, something I would be comfortable arguing in court if I have to.
What is required to do an AC21, and what does it involve?
There is no law on what you are required to do. If you do not inform the government, you are not breaking any law. But in most cases, it is a smart idea to inform the government. Why? Because if you are subject to AC21, you ported over, and then the old employer revokes the I-140, for somebody who has successfully ported, that does not have any effect on them. The old employer can revoke the I-140. You are still entitled to your AC21 benefits. However, I have seen cases when an old employer revoked the I-140. Instead of sending the usual RFE, USCIS sends a Notice of Intent to Revoke the I-485, and if you do not get it in timely manner, sometimes you could have an issue. Then you have to file a Motion to Reopen. It becomes messier. You might not have work authorization, because your I-485 has been revoked. That’s why, further down, I am going to advise you to keep your H-1 active in most of these cases. Even though the chances of something going wrong are extremely small, they do exist, and I like to cover every possible bad scenario that I possibly can. What you have to do is have your lawyers write a letter to the government saying that you are using AC21 and porting over to same or similar job.
May I transfer more than once using AC21?
Yes, you can do 20,000 change of employers. AC21 does not say you can do it only once.
Should I keep my H-1 active?
I just spoke about that. I think you should as far as humanly possible. If, for whatever reason, you cannot, it’s okay. You’re still reasonably safe as long as you keep track of your ****, but, where possible, keep your H-1 active. It’s so much better for you.
What are the dangers in using AC21?
One thing that has always bothered me is, if for some reason your I-485 is denied, for example, you are out of status and not even knowing you are out of status and your I-485 gets denied, you lose your AC21. This is something I’ve seen come up. An employee was placed in California where the LCA was approved for Colorado. That’s a violation of the H-1 laws. Most employers don’t know that. Unfortunately, some of my colleagues I’ve seen poorly advise that you can just file a new LC. That’s not true. H-1 amendments are needed when the move is beyond normal commuting distance. Inadvertently, you have fallen out of status for more than 180 days. Now your I-485 is deniable. You did not know that. The next thing is you’re getting a denial of I-485, and you are losing your right to AC21. That’s one major danger that I see all the time. Other than that, everything is covered if you can keep you H-1 active and, if you cannot, I feel that your risks are minimal. We have filed hundreds, if not thousands, of AC21 cases. I have not had a single case run into any kind of problem.
Sometimes, you can be interviewed. Does your risk of being interviewed increase because you’ve filed an AC21?
I personally don’t think so. I don’t see any indication of that. But, certainly, I’ve heard people say that that’s what happens. I don’t feel that’s a major danger. I don’t think that happens that frequently, but keep that in mind as well.
Folks, I hope I was able to give you some useful information. I know it’s kind of confusing, but we’ll keep talking about it until things become clearer.
Thank you for listening. Good luck.
Mr. Khanna is a very good advisor and one of the best experts in his field. I highly recommend his firm for immigration related advice and help.