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U.S. citizens (USC) and Lawful Permanent Residents (LPRs) may file immigrant visa petitions with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may immigrate to or remain in the United States. Sadly, certain cases exist where U.S. citizens and LPRs misuse their control of this process to abuse their family members. Consequently, most battered immigrants are fearful to report the abuse to the police or other authorities out of fear of losing their immigration benefits.
What can happen to the US citizen if a spousal abuse case is filed by an illegal immigrant?
The abusing spouse can go to prison.
This Policy Memorandum (PM) restates the Violence Against Women Act (VAWA) revocation policy.
Department of Health and Human Services (HHS) proposed rule on the removal of HIV infection from its list of communicable diseases of public health significance - As of now with respect to the above proposed rule the Chicago Field Office has not received any guidance from HQ. Hence the office will not hold such applications in suspension until further notice.
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)
I have been dealing with Mr. Khanna and the team for the last several years. I always felt that everytime you encounter with team, there is continous improvement in handling cases professionally. He is very through with the law and more importantly pragmatic. He giudes the clients in the right way. A great firm to work with, as he has dedicated staff and his services are always praiseworthy.
This policy memorandum (PM) provides guidance to U.S. Citizenship and Immigration Services (USCIS) officers in adjudicating Form I - 360, Petition for Amerasian, Widow(er) or Special Immigrant , filed by a self - petitioning adopted child, when the adopted child has been battered or abused.
Please click on the attachment to read more.
As stated by The New York Times, the House on Thursday gave final approval to a renewal of the Violence Against Women Act, sending a bipartisan Senate measure to President Obama after a House plan endorsed by conservatives was defeated.
To read more on this news story click here
Yesterday, President Obama signed a bill that both strengthened and reauthorized the Violence Against Women Act (VAWA).
For more on this news visit this link
Please check the attached document to read USCIS memo on timeframe to respond to RFEs on provisional unlawful presence waiver requests.
This policy memorandum (PM) provides guidance to U.S. Citizenship and Immigration Services (USCIS) officers in adjudicating Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, filed by a self-petitioning adopted child, when the adopted child has been battered or abused. Please click the attachment for more information on the memorandum
Mr. Khanna and his team take care of their clients. I've used their services in the past for my H1-B filing 10 years ago. And now when I emailed them with a question about Re-entry permit/N-470, Mr. Khanna made himself available to talk on the phone directly to help me out. I am really impressed with their service.
On January 21, 2022, USCIS published the following information on its website, which we have edited to provide clarifying remarks:
You may be eligible to request to transfer the underlying basis of your Form I-485, Application to Register Permanent Residence or Adjust Status, to a different employment-based immigrant category based on another Form I-140, Immigrant Petition for Alien Workers. USCIS may, in its discretion, grant a transfer request, if:
I am on H-1B visa with employer A. Have approved I-140 with priority date as Oct 2015 under EB-2. Looks like EB-2 can hit 2015 by the end of this year. With that in mind, Below are my questions:
1) Suggestions on switching employers when PD is nearing anytime soon. If I switch to employer B, what if my PD becomes current before employer B I-140 is approved? How long can I wait after my priority date becomes current to file I-485 with employer B I-140?
2) Will there be any issues for H-1B transfer and further H-1B extensions with employer B when the new PERM/I-140 is still under process?
If you have changed employers priority date with the old employer becomes current you could go back and join them, if you have a good explanation why you left them in the first place.
Note: Where transcribed from audio/video, this is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
My EB-2 was downgraded to EB-3 in Oct 2020 and the attorney marked the amended box ( "To amend a previously filed petition") as checked.
Timeline:
I received the EAD combo card in Dec 2021. Changed the Employer (though transferred H-1) using AC21 after way more than 180 days of pending 485
My PD is June 30, 2012 Now that EB3 is retrogressed and stuck in Jan 2012., I wanted to know
1. If I interfile EB2. Will it be rejected as the amended box was checked when downgraded?
2. If we interfile, will there be an impact on the EB-3, in case they reject it
3. What is the best way now to have both EB-2 and EB-3 run side by side. What is the fastest way to get to GC in my case?
1. First of all you cannot interfile because you are not with that employer who holds your EB-2 I-140. Regarding rejection, you are right.
2. It could be.
3.Have your new employer start a new case. Start from PERM upwards.
Note: Where transcribed from audio/video, this is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
What exactly is interfiling?
Hello Rajivji, in other question, you mentioned you can not interfile as EB2 is converted to EB3. Can you please help clarify? Employer 1: PD April 2013, EB2 Employer 2: EB2 in Jun 2019 in Oct 2020, Downgraded to EB3 as amendment I-140 and this EB3 I-140 is approved, I got EAD/AP too. I interfiled with 485J in March 2022. Would my interfile be accepted? if no- what are my options? I don't want to stuck in EB3 for next 5-10 years! Thanks for your help.
When an I-140 downgrade to EB-3 has been filed as an amendment instead of a new case, to get back into the EB-2 category, you have to file a new I-140 using the same PERM application. If the dates are current, you can concurrently file for adjustment of status.
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
FAQs: Traveled on Advance Parole - Maintaining H-1B status without going for stamping and filing multiple I-485 or Interfiling || Green card application for parents during tourist visa || How are PERM minimum job requirements determined? || Extending or Renewing F-1 student visa risks and requirements || Various Interfiling Issues ||
My current stamped visa has expired, I've received EAD & Advance parole (EB3) which is valid till July 2023. I'm still on H1B and haven't used EAD or advance parole. I've a 4 days closed loop cruise trip planned from Florida to the Bahamas. I would be using my advance parole to re-enter the country. If I use advance parole (EB3) to re-enter the country , can I interfile in EB2? Would using advance parole (EB3) to re-enter the country change my status to immigrant and impact my ability to iterfile in EB2?
Read my comment on my blog. The USCIS has said they will permit interfiling even after reentry on advance parole.
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
I entered USA on AP (EB3 EAD), I have a valid H1B I-797A till May 2024 I have approved EB2 I-140 I also have RFE on my EB3 I-140 (EAD and AP received on EB3 filing)
1) How can I get back on H-1B status without going for stamping?
2) Can I interfile my EB3 485 to EB2 485 with pending EB3 I-140
Since you have already entered and resumed the same job you are still considered to be on H-1B. There is nothing to get back to.
Yes, you can. Although you have traveled on advance parole you should be able to file EB-2 interfiling.
For more information you can also visit my blog:
https://immigration.com/blogs/adjustment-status-transferring-basis-i-48…
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
I have a question about Interfiling my GC case. My Priority Date (Aug 2014) is current in the June Visa Bulletin. I'm planning to go to India this month and return back next month. While coming back I will use my AP for POE and also My wife is already using EAD and AP.
1) Can I interfile if I use AP for entering the USA?
2) Can I go back to EB3 if the EB2 date is retrogressive?
1. The answer is yes. USCIS has made it clear that even if you have used the advanced parole the center will still allow you to do your interfiling as long as the dates for final action dates are current. Please refer the blog for more information: https://immigration.com/blogs
2. According to the USCIS you may only do so once. Although I don't know why I think it's improper enforcement of law and procedure but that's what the USCIS has said. Therefore, it is still possible, but you cannot interfile. However, in my view you can always file another I-485 to also activate the EB-3 from which you have already taken out the pre-existing I-485. Hence, I do not see any problem with filing a second I-485.
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
I am very much impressed with the professionalism of two of Mr Khanna's staffers. Shivane and Prerna were very patient and worked very hard to complete all the forms and putting the supporting documents together before filing with USCIS. I would certainly recommend this firm to others. Keep up the good work.