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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.

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) 

EB3 to EB2 conversion

EB3 to EB2 porting

EB3 to EB2

 Good afternoon, everyone.  This is US Immigration Attorney, Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

 This is a community information call.  It is not intended to create an attorney/client relationship.  Whatever we say here remains merely an informational conversation.

 This is a follow-up to the August 30 Community Conference Call.

 We are talking about issues related to converting from EB3 to EB2.

 What is this idea of EB-3 to EB-2 conversion?

 Most of you know that EB-3 for countries like India and China are very backed up and EB-2’s are better.  Actually, for the rest of the world also, EB-2 is much better.  So sometimes even though you have obtained a Labor Certification (PERM certification) and then you obtained an I-140 approval or you are on the path to that, you feel, “Oh, maybe I should have filed an EB-2, or maybe circumstances have changed and now I can file under EB-2.”  So, in those cases, when we get the priority date from an EB-3 case and put it on top of an EB-2 case, thereby essentially converting an EB-3 case to an EB-2 case, we refer to that loosely as a conversion.  Really, it is not a conversion.  It is a new case filed under EB-2, and essentially the priority date is being transferred.

One relevant question here.  Can priority dates be transferred if an employer revokes my old I-140? 

 The answer is “Yes.”  USCIS has said that they will allow transfers (carryovers) of priority dates even if the old I-140 is revoked, as long as the revocation is not for fraud.

So, when you do this analysis of EB-3 to EB-2 conversion, the first question you want to ask yourself is “Am I currently qualified for EB-2?”  

Why is this question important?  Remember a Green Card is for a job in the future, which means today I am working as a programmer; tomorrow’s job could be a project manager, and even though I continue to work as a programmer for the next three years or until I get my Green Card, it is not a problem.  The future job of project manager can be given to me once the Green Card is approved.  Or before.  That is up to the employer, but it is not required.  So the idea is a Green Card is for a future job.  However, you must be qualified for it on the date you filed the PERM application. 

So let’s say you have three years of experience after Bachelor’s Degree, and you know that the Green Card will take three or four more years, can you file under EB-2 today?  

No, because you are not qualified.  You may be qualified in two years or three years, but that does not mean you can file an EB-2 right now.

So are you currently qualified for EB-2?

One of the recommendations I have is for people who are not qualified and don’t have the five-year experience or have a three-year Bachelor’s Degree, you may consider doing a Master’s Degree online.  I have a video on this.  It’s on my blog.  It tells you how to choose an appropriate on-line Master’s Degree program that is accredited and that will help you get into EB-2.

Here is a link to the video and a transcript:

Accreditation of distance education for EB-2

The next question you want to ask yourself is Do I want to process my EB-2 case with the same employer who petitioned the EB-3 or some other employer?

It is a little bit easier to do it with another employer, but given the choice between going with a totally new employer and going with an employer who is totally, solidly behind me, who is going to pay the attorney’s fees.  This is a considerable expense.  If they’re on my side and they want to cooperate fully with the law, then of course I would stay with the same employer.

The next question you have to ask yourself is Do you need a promotion--present or future?

What does that mean?  What if you have three years of experience before you joined this employer, you want to process your Green Card through this employer, and you’ve got two years with this employer now?  Now you’ve got five years but two years are with the same employer through whom you are going to file your EB-2 who also did your EB-3 earlier.  In order to use that experience, you must be offered a job which is more than fifty percent different than what you were doing before.  Let’s say the old job was all coding and the new job is mostly providing project management, so that’s a promotion and then the experience that you have gained with this employer can be applied towards your EB-2.

I hope I’m making myself clear.  Most of you already know the concepts, but still I want to put it out there so that you are sensitized to the issues.  You can ask your lawyers the right kind of questions and make sure your case is being properly approached.  These concepts are difficult.  They can be complicated.  Even we can make mistakes.  Lawyers are not perfect, as all of you know.  Be educated and take your lawyers’ help in making these decisions.

It is very important to have a bona fide job.  

What does that mean?  If you have a three-employee company and the employer says, “I will you a promotion.”  That’s a little difficult to establish and believe.  It can be true but, if you are a 300-employee company or a 3,000-employee company, probably a better case for a promotion, but of course it all depends upon the facts of the case.  I’m just giving you an example.  This does not mean smaller companies cannot process promotion cases.

How do I eliminate the risk of problems of EB-3?

What does that mean?  I already have my EB-3 approval.  I don’t want to do anything that’s going to mess that up.

What you can do is, you can make sure, taking the example of the programmer under EB-3 who wants to go for project manager under EB-2.  If your EB-3 was for a programmer, make sure you continue working as a programmer until the I-140 for the new case is approved.  So don’t change jobs, because, if you take a promotion to project manager, then the Government could question, "This guy has already taken a promotion, then why would he come back to the lower job which is the Green Card job?” Do not take a promotion until the I-140 for the new case is approved.  That would be important.

What if I used AC-21?

This is a very tricky situation. You are one of the lucky ones who’s got your I- 485 pending and I-140 is approved under EB-3.  You changed from IBM to Sun Microsystems.  You changed employers.  Your job was programmer.  Now, for AC-21, the job that Sun gives you has to be the same or similar to the job IBM gave you.  So it’s got to be a programmer or thereabouts.  Now the problem here is this.  In order for Sun Microsystems to process your case under EB-2, they have to assess whether they have to promote you so that an EB-2-level job can be given to you or can they use the same job.  This can be tricky.

So for AC-21, the key question is can the same job which was the subject of AC-21 be used to file an EB-2 case?  

Tricky question.  Depends upon the facts of the case.

Now, to the posted set of Questions from the Community Conference call of August 30th.

First Set of Questions

Question:  I have an I-485 pending on EB-3.  I have been with my company for 12 years.  They are planning to apply for EB-2.  Same company.  I have a Bachelor’s four-year engineering degree from India.  Can I qualify for EB-2?

 Answer:  Yes if the job that is being offered to you is sufficiently dissimilar from the EB-3 job.

Question:  Is there any audit risk?

 Answer:  No.  Filing for a conversion (again, I am using the term “conversion” loosely) does not create any additional audit risks.

Question:  If we apply in EB-2, will my EB-3 application processing stop?

 Answer:  No, it does not stop.

Question:  What happens to the EB-3?

 Answer:  It goes on.  Don’t take up a promotion.  I just mentioned that.

Question:  My wife is working on EAD.  Will her EAD be affected?

Answer:  No, not at all.  No problem at all.

Question:  If I get EB-2 I- 140 approved, can I use EB-3 priority date?

Answer:  Yes.

Question:  At that time, will I get another EAD from EB-2 processing?

Answer:  No.  What you do is, you take the EB-2 I-140 approval and put it on top of the existing I-485.  So your old I-140 gets knocked out and the new one now sits on top of your I-485.  So I-485 does not need to be re-filed.

Second set of questions

Question:  He is preparing for his I-140 for EB-2.  Can this be done premium processing?

Answer:  Sure.

Question:  Do we have to specify the pending EB-3 case information?

Answer:  You will have to, because if there is an I-140 approved or pending under the old case, you have to mention that.  There is a question I think on the form.

Question:  Should we do it during the I-140 filing?

Answer:  Yes.  On the form itself, there is a question.  If there is only a Labor Certification pending, there is nothing to say.  If the I-140 is either pending or approved from the old case, you have to say it in the new I-140.

Question:  When I started filing for my EB-2 case, my attorney mentioned not to file AC-21. 

Answer:  I think that’s a personal choice.  I like to file AC-21’s and then I like to assess whether I would need a promotion case or I can go ahead with the same AC-21 job for EB-2.  I would like your lawyer to decide that as I do not know the case.