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Posted
Jan 18, 2006
| updated Dec
18, 2007
The following
questions and answers are based on those frequently posed to the attorneys
at the Murthy Law Firm. As a courtesy to our clients and
the immigrant community, we generously share this useful information.
Question 1.
Can a
person in India, whose family-based green card application is being
processed, come to the U.S. on a J-1 visa for a short time? Top
©MurthyDotCom
The pending green
card application makes it very difficult to obtain a J-1 visa, due to a
concept known as nonimmigrant intent. To qualify for a J-1 visa, or to enter
the United States in J-1 status, one must intend to come to the U.S. on a
temporary basis. A pending green card application shows that one has
expressed the intention to come to the U.S. on a permanent basis. However,
if the waiting period to process the family-based green card is extensive,
and it is possible to enter the U.S. on J-1, complete the J-1, and return
home to complete the two-year home residency requirement (if applicable)
before the green card process is completed, the nonimmigrant intent may not
be an issue.
Question 2.
Is
there any limit on the number of people on H-1 and green card that a firm
can employ?
Top
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There is no
limitation on the number of foreign nationals on H-1 and/or green card that
a company may employ. A company may be questioned by USCIS about its ability
to pay the offered wages of all the individuals being sponsored for green
cards. As USCIS improves its records management practices, requests for
evidence asking this question are likely to be more frequent.
Question 3.
How
long can I remain outside the U.S. without jeopardizing my permanent
residency status?
Top
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In order for one
to be considered as properly maintaining LPR status, a green card holder
must be maintaining a permanent residence in the United States. If one is
outside the U.S. for a period greater than either six months or 180 days,
the immigration inspector may start questioning whether the permanent
residence has been abandoned. Being outside the U.S. for such periods of
time can also be a problem when applying for U.S. citizenship.
©MurthyDotCom
If such an individual just makes an annual or biannual visit/s to the U.S.,
it may appear over time that s/he is spending more time abroad than in the
U.S., and actually is living and working abroad. Then the individual is at
risk of losing LPR status. If one plans on an extended stay outside the
United States, it is possible to apply for a reentry permit before leaving
the U.S., valid for a maximum period of two years. Such a permit would
greatly facilitate reentry to the United States.
Question 4.
What
can I do if I am unable to get a copy of the requested birth (or marriage)
certificate?
Top
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If a birth
certificate is not available, generally one will be asked to submit a
certificate of non-availability from the local authorities. Usually,
additional evidence like a school-leaving certificate, doctor or midwife
certificate, etc, is also required, along with sworn affidavits. Please
note, however, that affidavits are not primary evidence and can be rejected
unless an official in the foreign country explains why a birth certificate
is not available.
©MurthyDotCom
Affidavits from people present at the birth usually may be used to show the
details of a birth only after showing that a birth certificate has been
destroyed or is unavailable. If the people writing the affidavits know that
the birth was not reported to any civil or religious authority, they can
state this in their affidavits.
©MurthyDotCom
For India, acceptable birth certifications generally are:
A birth certificate from the Panchayat, Municipality, and Corporation where
one was born OR, all of the following:
a) a certificate from the Panchayat, Municipality, and Corporation that the
birth is not registered
b) additional evidence like a school-leaving certificate, doctor or midwife
certificate, etc.
c) two (2) affidavits on revenue stamped papers, each from any person
(including, but not necessarily, from parents) that have knowledge of the
birth. These affidavits should be signed and notarized.
Question
5.
I am a
citizen of India and a permanent resident of the United States. I have lost
both my passport and my green card. Is it possible to replace my green card
without a passport, or must I replace my passport first and then replace my
green card?
Top
©MurthyDotCom
You indicate that
you "lost" both your passport and your green card. We are assuming this
refers to a physical loss of the documents, and not a loss of your green
card status. In this situation, one should be able to replace the green card
without first replacing the passport. The green card can be replaced by
filing Form I-90 with the USCIS. Some local USCIS offices will also issue a
temporary I-551 (green card) stamp to use until the new card arrives.
Question
6.
Is it
permissible to change companies after the I-140 is approved? Are there any
concerns of which one should be aware before doing this?
Top
©MurthyDotCom
It is always permissible to change companies after
the I-140 is approved. The catch
is that the person may have to start the labor certification process over from the
beginning and file a new I-140 petition, once the labor certification
application is approved. However, one may be able to retain the
earlier priority date from the first company. If the I-140 is based on a
national interest waiver, on a self-petitioning basis, changing employers
may not affect the green card application process at all if within the same field of
expertise.
Question
7.
Is a
labor certification application and I-140 valid for only one employer? Does
a change of employer make the above approvals void?
Top
©MurthyDotCom
The labor certification and
the I-140 is only applicable for a particular employer in the United States.
Changing the employer requires that the person start the process over from
the beginning with the possibility that the priority date can be maintained,
in some instances.
Question
8.
I have
not yet received the permanent resident card after arriving in the United
States four months ago. Now I have changed my address in the U.S. What
should I do? Top
©MurthyDotCom
In this
situation, one needs to file Form AR-11 (Change of Address) with the USCIS.
It is important to keep a copy of the form and a receipt showing the date
and address to which the form was mailed. One should call the National
Customer Service Center (NCSC) to update one's address and inquire about the
permanent resident card, as well. If the permanent resident card is not
issued, then Form I-90 should be filed in order to obtain a new card.
©MurthyDotCom
Form AR-11 can be
filed electronically at
www.uscis.gov and one's address can be updated with the service center
by following the Change Your Address link. If one's address is updated
online, it is important to keep the electronic confirmation that USCIS
provides.
Question
9.
We recently
received our employment authorizations during the last stage of our green
card process. If I were to lose my job for any reason, would my spouse still
continue to hold her employment authorization document?
Top
©MurthyDotCom
If it is an
employment-based green card process, then all is dependent upon the employer
continuing to offer the job to the employee. If that should change, then
both the employee and any dependent family members may have a problem with
their statuses and the I-485 is at risk for problems, including losing the
employment authorization documents (EADs), unless the circumstances allow
the employee to continue the process with a new employer under the AC21
Green Card Portability Law.
Question 10.
My
green card is being processed by my company. If my H1B expires (after 6
years) and I go back to India for a year and return with a new H1B, do I
have to restart my green card application process with my company?
Top
©MurthyDotCom
One does not need
to restart the green card application process when s/he travels abroad or
spends a significant period of time abroad. The process can continue, since
the green card is for a future job and not a current job.
Question 11.
When
applying for a green card, what is to be done if the date of birth is
registered incorrectly - if there is a discrepancy between the date of birth
on the passport and the birth certificate?
TOP
©MurthyDotCom
In almost every
case, the governing document is the applicant's birth certificate and not
the applicant's passport. A passport is merely considered secondary evidence
for legal purposes. Affidavits from relatives can also be helpful in
confirming the correct date of birth. It is possible to use the birth
certificate to reflect the only available government document combined with
additional evidence such as a school-leaving certificate, doctor or midwife
certificate, etc, and two affidavits attesting to the correct date of birth.
Question 12.
My
wife and I have been permanent residents for over one year. I plan to return
to India for two years to take care of my parents. What are the legal
reasons I can obtain the reentry permit? When should I apply for the permit?
What are my obligations after getting the permit to prove our intention to
keep the PR?
Top
©MurthyDotCom
One is only
allowed to apply for a reentry permit while in the United States. The USCIS
will approve an application for reentry permit when the reason, which
requires travel abroad, is legitimate. There are certain rights and
responsibilities of green card holders (like payment of taxes, etc), which
must continue even if one is on a reentry permit. It is also important to be
able to continue to show that one is maintaining permanent residence in the
U.S. Generally, USCIS is also looking to see proof that the permanent
residence has been maintained in the time before applying for the reentry
permit.
Question 13.
I am a
citizen of India, but was born in Tanzania. I'm about to apply for permanent
residence under the EB3 category. Does the priority date backlog for Indian
nationals also apply to me, or can I qualify to apply as a national of my
country of birth?
Top
©MurthyDotCom
A person’s
country of “chargeability” or priority date assignment is generally based on
country of birth and not country of citizenship. It this situation, it is
likely one would qualify to apply as a national of Tanzania.
Question 14.
Is
there a law limiting the time a U.S. resident can stay outside of the U.S.?
How would this impact one who is just visiting relatives?
Top
©MurthyDotCom
The law states
that a person who is a permanent resident is required to permanently reside
in the United States. By remaining outside the country for long periods of
time, one may be deemed to have abandoned permanent residency status. The
permanent resident could end up having the green card confiscated by the
USCIS officer. A permanent resident outside the United States for a year or
more is generally required to have a reentry permit along with the green
card and passport to return to the United States.
Question 15.
I am a
permanent resident who is wondering what would be an example of proof of my
residency status. Something like a passport, or what? Top
©MurthyDotCom
One's proof of
having permanent residency in the U.S. is a green card. An I-551 stamp in
the passport is temporary evidence of permanent residence status.
Question 16.
One of
my relatives had a green card and went to India with a 2-year reentry
permit. The reentry permit has expired. Is there any way he can reenter the
U.S. with his green card?
Top
©MurthyDotCom
It is very
unlikely that one who has stayed beyond the 2 years on a reentry permit will
be allowed to reenter as a green card holder. The green card may have been
lost already, unless there was some major medical condition that prevented
reentry to United States. In very few instances might a person may be able
to obtain a returning resident visa from the U.S. Consulate to return to the
U.S.
Question
17.
I am
planning to start my green card process through a small company that I
intend to join in about a year. This company is being run from the home of
the owner with about 5-6 employees. Could this cause any problems for my GC
processing?
Top
©MurthyDotCom
There is nothing
specifically prohibiting a small, home-based business from sponsoring a
person for a green card. The employer will, however, have to show the
ability to afford paying the employee's salary and that there is sufficient
work. The new PERM regulations do require a company with fewer than ten
employees to provide additional "proof of existence" information and
documents for the PERM audit file.
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