USCIS Q&A: Filing a Form I-485, I-765, and I-131 for Refugees and Asylees
USCIS offers a Questions and Answers to clarify issues on filing adjustment applications, work authorization documents, and refugee travel documents for refugees and asylees.
USCIS offers a Questions and Answers to clarify issues on filing adjustment applications, work authorization documents, and refugee travel documents for refugees and asylees.
Hello, everyone. This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.
I wanted to talk with you folks about requirements for naturalization for people who get their Green Card based upon employment and then have to stay outside USA for a certain period time. Many of the criteria here are common to people who have obtained their Green Card through any other method such as through marriage or through political asylum. Pretty much, it is the same law. But I want to focus primarily on people who have gotten an employment-based Green Card, because those are the inquires I receive the most and I don’t want to miss anything, because N-470 typically does not apply to people in non-employment situations, except for missionaries. I’ll get to that in a second.
So, first of all, let’s look at the requirements for somebody to get naturalized in USA. What are the normal requirements?
Right here. You must have received your Green Card approval five years ago. Actually, it is a little bit more complicated than that. You can apply 90 days before your 5th year anniversary of Green Card. In case you got your Green Card through marriage, then it is three years, when you are married to a US citizen. After that, you must have stayed in USA for at least 30 months physically. 2 ½ years. Half the time. You should not have visited outside USA for a year or more. If you go outside USA for a year, your Green Card is gone. It’s difficult to get it back. Not impossible, but what you will have to do if you end up staying for a year or more outside USA is, you will have to go to the consulate and convince them that you have not abandoned your US permanent residence, your Green Card, and you can do that by a process called SB-1 (Returning Resident Permit). I’m not going to go into that in too much detail, but just to give you an idea. If you are outside USA for one year or more, for naturalization purposes, you have to start your five years all over again, except in the following two circumstances, I-131 and N-470, which are these. I’ll get to that in a second as well.
So, physical presence of 2 ½ years, no visit outside USA for a year or more, any visit outside USA for six months or more but less than one year, you have to explain. Why were you gone that long? So this is for people who have not filed these special forms called I-131 and N-470. I also want to make a quick note about I-131 and N-470.
What is I-131?
It’s the same form you used for filing for Advanced Parole when you are in need of Advanced Parole during your Adjustment of Status. It’s also the same form used for protecting your Green Card through a process called Reentry Permit. So you use your 1-131 to apply for a Reentry Permit, which is typically given for two years at one go, and you can get that extended, depending on the circumstances. Basically, the I-131 tells the government, “Look. I am not abandoning my permanent residence. I am just going outside temporarily.” Once you file the I-131, things change for naturalization purposes.
Did you stay outside USA for one year continuously?
If you did, ordinarily, if you had not filed I-131, you would have to start five years all over again, if you have not lost your Green Card. You could have even lost your Green Card. But, if you had filed your I-131, you don’t lose your Green Card, and you also get a respite of one year. When you come back, you have to establish your US residence for four years and one day instead of five years and apply after you have accumulated physical presence in USA for 2 ½ years. It gives you one year off from those five years. That’s an added advantage of I-131. It protects your Green Card as much as humanly possible. There’s more to it. I would always advise you to talk with a lawyer before you take any steps of going outside USA for an extended period of time. It also shortens the time of five years that you would have to otherwise accumulate for naturalization.
Did you stay outside USA for one year continuously after I-131?
If the answer is no, then these same requirements that apply to normal people will apply to you. Physical presence of 30 months, no visit outside USA for a year or more, six months or more will have to be explained.
Then comes N-470.
N-470 is one of those tricky strange forms. It’s applicable to a certain group of people. I would strongly encourage you to read up on the instructions on N-470. They’re pretty informative.
The way this works is, if you’re going to work for a US company abroad and, again, I am talking about employment context. There are other reasons N-470 can be filed. Read the instructions. What N-470 does is it allows you to stay outside USA for a year or more and not have a break that will restart your five years all over again. Let me explain. Let’s say I file I-131 and N-470. I do it together. Usually, in most cases, we do both forms together. When you file I-131 and N-470 together, let’s say you stayed outside USA for 1 ½ years. Normally, when you come back, you have to start that five-year period all over again, because you were outside USA for one year or, in case of I-131, you have to start the four year, one day period all over again. But N-470 says, “We forgive your stay outside USA for one year or more for naturalization purposes. We don’t forgive your requirement of 30 months of physical presence.” But it stops the discontinuity that would normally restart the five-year clock or the four year, one day clock after having stayed outside USA for one year. It is a clock-stopping device. It is a very good device. One problem though. N-470 has one strange requirement. You must have at least one year anywhere during your stay in USA as a Green Card holder where you did not travel outside USA for even for one day. Makes no sense to me. I don’t know why it is there, but it’s there. Go figure, but keep that in mind.
I hope this has been informative. I had told one of our posters. Somebody had posted a comment on immigration.com wanting to know more about this. And I told him that I’ll record something, but I’ve had some technical issues. They’re working on our website developing some new material that will make it easier for us to post our videos. I hope to be doing this a lot more, and I’ll continue to do so.
Thank you for being here. I hope to speak with you very soon.
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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)
Does the USCIS make a distinction as to whether a specialist physician works in a Medically Underserved Area vs Health Professional Shortage Area versus Physician Scarcity Area? My job falls in MUA, HPSA but not PSA , is this a problem for a specialist?
NIW requires "You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)."
Is there a direct way for me to get a green card or apply for EB-3 without my employer's support? My employer is unwilling to support me for any working visa and I am already out of the status due to this.
Three options: Extraordinary Ability Aliens, National Interest Waiver and Investment (EB-5).
I got my Ph.D. (biochemistry and molecular biology) and I have 3+ years of post-doctoral experience. I have 4 publications (3 lead author) in human pathogenic research. Could you please comment on my eligibility for EB-1 or NIW.
My best GUESS is probably not. While NIW/EB-1 should not be a numbers game: how many publications, how many citations..., but it often ends up like that. Given that if you had one publication in a premier journal like Science, that would could count a lot more than 5 or 10 publications in a lower impact factor journal.
We won a case for National Interest Waiver a Microbiologist holding a Ph.D., 12 publications and over ten years research experience. We were able to provide evidence of a strong national interest through numerous letters of recommendation from leading scientists. This applicant had an international reputation in his field.
This applicant was a data recovery specialist under contract with the U.S. government providing critical skills to a high-level project. It was noted by referees that his knowledge and background were rare and greatly needed in the interest of our national defense. We provided documentation of his academic achievements as well as additional specialized training.
We won this case for an applicant with five years research experience. The applicant was able to secure a very strong letter from the National Science Foundation director which detailed the innovative and pioneering work of the applicant. It was noted that his skills were critical for an initiative developed by the Foundation. We also offered evidence of his strong Ph.D. work as well as his publication record.
We obtained both and Outstanding Researcher and National Interest Waiver for this applicant. Based on his strong academic record and exceptional work experience we were able to obtain letters of recommendation from leading experts around the world. The applicant was currently working for one of the most prestigious research/teaching institutes in the world. His innovative research was noted internationally and he had multiple scholarly articles in well-respected journals. He also held membership in leading professional societies.&nbs
We won a case for National Interest Waiver for a Physician working in a medically underserved area. We provided a five year contract, copy of his J-1 Waiver approval, numerous experience letters, a letter from the Department of State and documentation to reflect statistics of health professional shortage in the area.
We won both an EB1 Alien of Extraordinary Ability case and a National Interest Waiver for this applicant. He was noted as being an exceptionally qualified, brilliant and outstanding researcher amongst an international peer group. We provided copies of his substantial publication record as well as evidence of his numerous "invited" presentations. This applicant had patented material which was identified as innovative and pioneering in the field and admired by top researchers.
We won this case as the applicant was noted to be a critical component to the success of various projects and had a very large impact on the research program. Referees described this applicant's talents to be rare and difficult to replace by U.S. workers. Her original and pioneering research made her uniquely qualified to further this intrinsically important research which greatly effected the nation as a whole.
We won a National Interest Waiver case for a Molecular Biologist holding a Ph.D. having over ten years of research experience. We argued that her qualifications were unique as compared to others in the field and that she was noted as one of the few in her field that has achieved the highest level of success. She had remarkable contributions to the field, most notably her significant discoveries in cardiovascular research. This applicant had an extensive publication list as well as a book chapter.
We won a National Interest Waiver case for an applicant holding an M.D., Ph.D. and MSE in Biomedical Engineering, and a B.Tech. in Electrical Engineering. This applicant had an extraordinary background. His degrees were received from the most prestigious institutes in the world, notably Harvard, MIT and Johns Hopkins University . His pioneering work has lead others in the field to a better understanding of what causes sudden cardiac death through fatal arrhythmias. His work was quoted as "revolutionizing health care."
This applicant provided a 5-year contract for services in a medically underserved area, a copy of his J-1 residency requirement waiver, letters from the Health and Human Services office in his area requesting his services, documentation to reflect the statistics of the health professional shortage in his employment area as well as copies of his license to practice medicine.
We won a case for a physician who provided a contract for services for 5 years in a medically underserved area. This applicant also submitted copies of his degree, medical license, medical degree equivalency evaluation, USMLE Step 1, 2 and 3, status paperwork, letter from potential employer stating need, documentation of statistical data on medically underserved area and a letter from Bureau of Health Care Services.
If USCIS conducts an on-site inspection as a condition of approving an EB-4 immigrant petition, what will this involve?
The on-site inspection may include the following:
1. A tour of the organization’s facilities and, if appropriate, the organization’s headquarters or satellite location;
2. An interview with the organization’s officials;
3. A review of the organization’s records related to compliance with immigration laws and regulations; and
4. A visit to the locations where the applicant will work or live.
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My awes goes to the Mathew and Aruna team. Thank you for the excellent job done so far.
And here is my time-line:
PERM: FD: 8/11/2005 AD: 9/12/2005
EAD AD 10/4/2006
AP AD 10/4/2006
I140 AD 8/5/2006
I485 .. soon...
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Each month, the Visa Office subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and CIS Offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current." For example: If the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category wi
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