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My employer applied PERM (in 6th year) in October 2011 EB-2 Category and it picked for random audit in Jan 2012, employer asked me to send signed ETA form to respond to Audit question with in 2 weeks. They said its random computer audit and has to respond with paper documents. I am already in 6th yr and my H-1 get expired by May 22, 2012 is it possible to go for H-1 extension beyond 6th year while PERM is still in Audit status.
You will be eligible for H-1 extension beginning October 2012, even if PERM is pending audit or not.
What happens if your H-1 expires before the PERM audit is cleared by DOL. Are we supposed to leave country. I have 20 months of H-1 life left to reach 6 years and my LABOR is in AUDIT status I am just wondering if I get an extension or will I be checked out of USA.
While a PERM audit or even an appeal against a denial after the audit is pending, you would still be entitled to H-1 extensions beyond six years.
DOL seems to have stopped progressing on the Audit cases. Can litigation alleviate this problem and force them to atleast respond?
All things considered, in my view, a Mandamus is possible. But the chances of success are remote at least in DC circuit. Typically, in delay cases, courts do not interfere with the executive branch of the govt. At the very least, lawsuits draw attention to difficult issues. I think a petition to the govt. should be the first step. May be the worthy President can help. Although, speedy processing in this environment is certainly not a politically popular issue, but we have all followed the laws and the promise of the laws.
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.
The Atlanta NPC Team will implement the following plan to induct applications filed into Audit Review and tag cases for possible Supervised Recruitment. This version of the plan has identified 8 criterions that specify types of cases that will be targeted for Audit Review and tagged for possible Supervised Recruitment.
At the October 28, 2010, stakeholder meeting with the U.S. Department of Labor, DOL discussed their increased staffing capability and a corresponding increased scrutiny of cases where the employer fails to respond to an Audit Notification letter or submits an incomplete response to such a letter. Where DOL identifies a substantial failure by the employer to provide required documentation in response to an Audit Notification letter, DOL indicated that we can expect to see more debarment and/or revocation proceedings.
1) I recently submitted a PERM with company A which is wholly owned by a parent company B. Company B will soon absorb company A which will cease to exist as an independent company and will just become a new department within company B. How will my PERM be affected?
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2) If my PERM is audited and I don't want to go through the audit, will it be a good idea to change employers and submit a new PERM from scratch? What are the odds of being selected for an audit twice in a row?
It IS possible for your green card to remain unaffected even after the corporate change over.
Recently, DOL has begun to issue audits with the following language: “The foreign worker listed on the ETA 9089 resides in [residence location], section H of the 9089 provides [work location] as the worksite. Has DOL explained how the foreign worker performs the job duties of the job opportunity given the distance between [residence location] and [work location].Is the employee permitted and/or expected to perform the duties of the job opportunity listed on ETA 9089 from his residence and/or his place of choosing?” In many cases, the two locations are quite close and are clearly within a normal commuting distance (e.g. Atlanta and Marietta,
Georgia – distance approximately 20 miles; Palisades Park and Parsippany, New Jersey – distance approximately 30 miles). In one case, the work and residence locations were less than two miles apart. Has DOL considered conducting an initial review of the distance between the residence location and work location before issuing the audit?
DOL indicates that this kind of question on an audit where the work location and residence location are close together is likely a training issue. DOL does, however, believe that it is appropriate to inquire about this kind of issue where it is unclear why the residential address and the work address are far apart from one another, and does issue audits on that basis where appropriate.
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.
Hi: I would like to thank Mr. Rajiv Khanna for giving me and my employer some guidance on my case. The conference call with him was well worth the time and the money - his staff was very professional in setting it up and during the call he was very helpful and was not at all rushed. What I liked was even though we ran onto the next appointment's time he asked us to jump back in the call after sometime to make sure all our queries were answered. Thank You Again.