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Green Card Holders Who want to return to Japan or live overseas for an Extended Period of Time.

  • September 12, 2013
  • Richard Newman

In my law practice, I have many clients who ask how they can keep their green card and go back to Japan for an extended period of time.  Having a green card means that you want to live in the United States on a permanent basis. Evidence of your life here means that you live and work in the U.S. It can also mean that you have family ties to the US, maintain bank accounts in the U.S., own property or have other assets in the U.S., file US tax returns, etc.

You do not need to live in the United States 12 months a year to keep your green card. You can safely keep your green card if you live in the U.S. for 6 months a year, or even less, as long as you maintain your primary residence in the U.S.

The problem seems to come up when someone says that they want to return to Japan, or live abroad for an extended period of time. Many people try to live abroad and return to the U.S. every six months for a few days or a week, thinking that this will avoid any problems. This method might work for a couple of years, but eventually the immigration inspector at the airport will question your permanent residence in the United States.  A simple question such as “where do you live” will give you away. Also, if your passport stamps show that you are only in the United States for a couple of days or weeks each year, the officer will realize that you “live” somewhere else.

Basically the determination as to whether you have abandoned your green card is a balancing act.  There are several factors the government will look at to determine whether someone has “abandoned” their green card.  These factors include:

Length of time spent in the U.S. each year.
Where do you work?
Do you have close family ties in the US? spouse, children, other relatives.
What status do they have? Are they U.S. citizens or green card holders?
Do you own property in the United States?
Where do you maintain other assets, such as bank accounts, stocks, bonds, etc.?
Do you file U.S. tax returns?

The list can go on and on, and is basically a common sense approach.

However, there are a number of other factors that can work in favor of keeping your green card.  These include:

Obtain a re-entry permit. The re-entry permit is a travel document issued to green card holders by the US government. It generally means that the individual may be out of the country for an extended period, but wishes to keep their green card. It can be used by green card shown to the US immigration inspectors upon entry at the airports. The immigration officers know what it means and it usually makes your entry easier.  The re-entry permit is green and looks like a passport, but it cannot be used in place of your Japanese passport. When you enter the U.S. you show the officer your passport, green card and re-entry permit.  The re-entry permit is issued for 2 years and can be renewed up to 4 times.

The re-entry permit does not guarantee that you can keep your green card if you have not been complying with the rules for maintaining your permanent residence in the United States – but it can help a lot.  It is still best that you return to the U.S. at least once every 6 months.

Work for a U.S. company overseas.  An exception to the requirement of living in the U.S. with the green card is if you are temporarily transferred abroad by a US company to work for a subsidiary or related company overseas.

Become a U.S. citizen.  If you become a US citizen, then you can live abroad for any length of time and not lose your U.S. citizenship. Note: Japan does not allow for dual citizenship. If you become a US citizen, you could lose your Japanese passport.

 

USCIS Agrees to Accept Same-Sex Marriage Petitions

In a major court decision, the Supreme Court ruled to strike down (invalidate) the law known as the Defense of Marriage Act (DOMA), DOMA, a federal law enacted in 1996, allowed states to refuse to recognize same-sex marriages granted by laws of other states.  DOMA effectively barred same-sex married couples from being recognized as “spouses” for purposes of receiving federal marriage benefits.

The Supreme Court decision striking down DOMA, makes same-sex marriage legal for federal purposes that include immigration benefits.  Hence, the United States Citizenship & Immigration Services will immediately begin accepting relative petitions (Form I-130) filed by US citizens and green card holders on behalf of their same-sex spouses so that they can obtain green cards.  USCIS should also reopen same-sex marriage cases that were denied since February 2011, according to an announcement from USCIS. Petitions that were denied before that time can request to have their petitions reopened.

Going forward, the USCIS will review same-sex marriage cases in the same way that petitions filed on behalf of opposite-sex spouses are treated.  For many years, Dept of Homeland Security policy has been to recognize marriages as long as they are valid in the state or country where they take place.

H-1B Cap-Gap Extension: Travel Tips for F-1 Student

F-1 students whose petitions were accepted for this year’s H-1B lottery are eligible for cap-gap automatic extensions of their F-1 status and also their F-1 work authorization under Optional Practical Training (OPT) through Sept 30, 2013.  Although somewhat unclear, USCIS indicates that these F-1 students will lose their cap-gap benefits if they travel internationally during the cap-gap period.  This means that if an F-1 student travels outside the U.S. during the cap-gap extension, they will not be able to return during to the United States in valid F-1 status.  This is because USCIS considers an application for change of status to be abandoned if the applicant leaves the country. Best practice is to remain in the country during the cap-gap period.

If your H-1B petition has been approved for Oct 1, and you want to travel abroad, then expect to wait outside the U.S. until you can apply for an H-1B visa stamp at the American Embassy or Consulate in Japan, and return on H-1B visa status.  The earliest an H-1B beneficiary can return to the U.S. is 10 before the start date, or Sept. 20.  However, the H-1B beneficiary cannot start H-1B employment until October 1.

U.S. Dept of Labor rule tightens PERM system on Labor Certifications

In 2006, The Board of Labor Certification Appeals (BALCA) decided in the case, HealthAmerica, that a minor typographical error or clerical mistake of minor importance on a labor certification was not the basis for a denial of that labor certification. The Court reasoned that the consequences to the employer are out of proportion to the mistake.  However, the decision in HealthAmerica has been effectively overruled when the US Labor Department passed a rule (20 CFR Sec 656.11(b)). This rule basically states that correcting an error in the labor certification (Form ETA 9089) would constitute a modification to the application, and that requests for a modification to an application will not be accepted.  Unfortunately, this rule elevates form over substance in the labor certification process.

The PERM labor certification is required in many, if not most, employment-based green card cases, and requires that the employer test the local labor market to determine whether there are US workers available for the position for which the employee is being sponsored.  The PERM application process continues to be a very tight system in which simple clerical typos and mistakes can result in denial of an application, and the need for the employer to re-advertise for the position, and re-file a PERM application.