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Guide: Travel While on Green Card / Maintenance of Permanent Residence

By: Hasan Abdullah, Esq.

The most common question that green card holders seem to ask is what impact will spending time outside the United States have on their permanent residence. This article will provide some basic guidance on this issue, as well as resolve matters related to residence requirements for naturalization.

What is the Distinction between Continuity of Residence and Physical Presence?

A lawful permanent resident (LPR) applying for naturalization is expected to continuously maintain residence in the United States. This does not mean that you must be physically present at all times. In other words, a break in physical presence does not amount to a break in continuity of residence.

The concept of continuity of residence and physical presence are important concepts to understand in the context of applying for naturalization. In order to be eligible for naturalization, you may not have any breaks in continuity during the relevant statutory period of time for which you must demonstrate such continuity (the immediately preceding 3 years if you obtained permanent residence through marriage or VAWA, or 5 years if you obtained you permanent residence through other means*). You must be physically present in the US for only half the time (18 months if you obtained permanent residence through marriage or VAWA, or 30 months if you obtained your permanent residence through other means).

  • According to 8 C.F.R. § 316.5(c)(1)(i), departures of more than 6 months and less than 12, do not necessarily break the required continuity, but the burden is on the applicant to establish that you did not, in fact, abandon residence in the US. Be prepared to prove you didn’t break continuity under the regulation. You can show maintenance of ties with the following facts (this is not an exhaustive list):
  • (A) The applicant did not terminate his or her employment in the United States;
  • (B) The applicant’s immediate family remained in the United States;
  • (C) The applicant retained full access to his or her United States abode; or
  • (D) The applicant did not obtain employment while abroad.

According to 8 C.F.R. § 316.5(c)(1)(ii), departures of more than 1 year will break continuity.

If continuity is broken, then you must wait 4 years 1 day, or 2 years 1 day if you obtained permanent residence through marriage or VAWA, before you may apply for naturalization.

Having a reentry permit will not prevent the application of the above rules. So, if you leave for 1+ year and return on a reentry permit, you will be deemed to have broken continuity.

What is the Distinction between Abandonment of Residence and a Break in Continuity?

If an LPR is deemed to have “abandoned residence,” then their status as a permanent residence is terminated and they may be placed into removal proceedings. Again, if an LPR is deemed to have had a “break in continuity” in their residence, the consequence will merely be that they will have to wait 4 years + 1 day (or 2 years + 1 day in marriage of VAWA-based LPRs) until they may apply for naturalization.

When you are returning to the United States, the Customs and Border Protection (CBP) officer will only assess whether you have abandoned residence. Regaining admission after CBP inspection does not guarantee that you did not break your continuity of residence. It also does not necessary mean that you did not abandon residence, it simply means that the officer was satisfied that you did not abandon residence. In other words, the officer’s conclusion is not binding on Immigration Customs Enforcement (ICE) officers from deciding to put you into removal proceedings for abandoning residence or on United States Citizenship and Immigration Service (USCIS) officers concluding that you have abandoned residence. So even if your abandonment took place several years ago, and you were successfully readmitted, you can still potentially lose your green card.

While the matter of continuity is more of a simple matter of timing, abandonment is a matter of assessing intent. A mistake LPRs make is assuming that as long as they don’t break continuity by “touching US soil” every 6 months, they will be safe from being deemed to have abandoned residence. Another mistake LPRs make is assuming that you can get reentry permits, and therefore, have a guarantee that they will be readmitted. A reentry permit is not a guarantee to readmission. You may still be questioned about your ties to the US and whether you have taken actions that amount to abandonment.

So, what kinds of considerations are relevant to determining whether you have abandoned residence? The analysis has to do with whether or not you have returned from a temporary visit abroad. With respect to the 9th Circuit US Court of Appeals, “temporary visit abroad” is one where (a) it is for a relatively short period, fixed by some early event, or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.” Since the key consideration to abandonment is that whether or not you have taken “temporary visits abroad,” if you tend to have had a habit of regularly spending several months every year outside the country, and simply returned to the US to touch soil, you risk being found to have abandoned residence. There is virtually an infinite number of travel scenarios, some clearly will result in abandonment, and some that clearly will not, and some situations which are more in a gray area. The assessment of whether you have abandoned residence is a discretionary matter based on the totality of circumstances.

And although an absence of less than 6 months can never disrupt residence for naturalization, it can result in an abandonment of the LPR status. One situation where this risk may exist is if an LPR gives up their job and abode (home/apartment) in the US, and gets a new job and abode in their home country. Even if the trip lasts less than 6 months, the above actions could potentially lead a CBP officer to take away your green card. The CBP officer may not be able to read the LPRs mind, but based on the totality of circumstances, it is arguable that those actions constitute intent to abandon residence.

LPR Responsibility to File Income Tax

Also of importance is the requirement to file taxes in the US. Pursuant to 8 C.R.F. § 316.5(c)(2): “An applicant who is a lawfully admitted permanent resident of the United states, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.”

Note that even if an LPR does not earn income in the US, the LPR would still need to report his/her worldwide income on a U.S. tax return as a resident. Certain treaties will determine whether the LPR may only have to pay taxes to the foreign country from which sources of income are derived.

What if I left the US for Over 1 Year without a Reentry Permit, or have been Outside the United Stated for Over 2 Years?

You will likely not be permitted to return to the US on your green card, and it may be best to apply for a special immigrant visa (SB-1) at a U.S. consulate. An alien can qualify for this if it can be established that:

  1. The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;
  2. The alien departed from the United States with the intention of returning and has not abandoned that intention; and
  3. The alien is returning to the United Stated from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien’s control and for which the alien was not responsible.

Conclusion

Ideally spend at least half of your time in any given year in the US, and do not take trips longer than 6 months. If you must take a trip longer than 6 months and less than 12 months, be prepared to explain why you spent so much time outside the US and that you intended to only make a temporary departure. If you must take a trip longer than 1 year and less than 2, get a reentry permit, and be prepared to explain why you spent so much time outside the US, and that you intended to only make a temporary departure. If you must take a trip longer than 2 years, you will likely not be permitted to return to the US as a permanent resident unless you apply for a special immigrant visa and can show that your long absence was beyond your control. Above all, ensure that you maintain ties to the United States during your absences, including family members, a residence, or a job. In a situation where you are not maintaining any of the above, you should at least have a very convincing explanation as to why the trip was necessary and what made it temporary in nature.

Before making a plan to spend significant time outside the United States, it would be advisable to consult a qualified immigration attorney to analyze the risks.

Disclaimer: This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and the website publisher. The website should not be used as a substitute for competent legal advice from a licensed professional attorney.

*Note: you may apply for naturalization 3 months in advance of reaching the 3 or 5 years of continuous residence.

Latest Pages

1. Latest Articles & Updates

2. Choosing the L1A or L1B to enter the United States.

The United States has created an immigration solution for companies with subsidiaries, affiliates, and branches around the world. The L-1 classification allows foreign nationals employed outside of the U.S. to enter the U.S. and work for a qualifying subsidiary, affiliate, or etc. There are two types of L-1 classifications available: (1) L-1A, for individuals employed in a managerial or executive capacity, and (2) L-1B, for individuals with specialized knowledge capacity.

Today, transnational corporation commonly have numerous subsidiaries, affiliates, and branches throughout the world. Subsequently, companies may need to temporarily transfer a high-ranking or uniquely talented employee to an affiliate in another country to handle some specialized business.

Generally, the USCIS initially grants an individual L-1 status for three years. However, an individual’s L-1 status will initially last only one year if he or she is entering the U.S. to work for a start-up company. Once in L-1 status, an individual can extend their status after the initial period expires. Individuals in L-1A status can extend their status for up to seven years, while individuals in L-1B status can extend their status up to five years. Note that since all employees are hired on an “at-will” basis, the L-1 U.S. employer is not required to retain the employee for the entire seven or five year period. Finally, if the employer/employee relationship endures for the entire L-1 period, the individual must spend one full year outside of the U.S. before her or she is eligible to apply for a new period of L-1 status.

Once granted L-1 status, an individual’s spouse and children are eligible for L-2 derivative status. Individuals in L-2 status are not authorized to work unless they apply and receive an employment authorization card (EAD). However, the USCIS allows individuals to attend a U.S. school without changing his or her immigration status.

Requirements

An L-1 candidate must provide the USCIS with (1) proof of employment with a qualifying U.S. company; (2) proof that the L-1 employer generates sufficient business to employ the candidate; and (3) evidence that the candidate will be engaged in a “managerial or executive capacity” or “specialized knowledge capacity.” These three requirements are explored in further detail below.

Proof of Employment with a Qualifying Company

The L-1 candidate must be employed with the petitioning company’s affiliate, parent, or subsidiary for a continuous period of one-year within the three-years prior to filing the petition or entry into the U.S. This employment must have been in either a managerial/executive capacity or specialized knowledge capacity.

The candidate then must submit the required supporting documentation about the petitioning employer:

  • * Evidence that the company abroad and the petitioning company are related. The critical issue is whether either of the companies exercise control over the other company. This is a relatively flexible requirement, as even a 50/50 joint venture qualifies;
  • * Detailed written description of the petitioning company’s business, including its history, facilities, resources, and organization;
  • * Description of the company’s employees along including job titles and duties;
  • * Evidence that the company will continue to do business abroad during the candidate’s U.S. employment; and
  • * Documents evidencing the company’s corporate organization and long-term financial viability.

Doing Business in the United States

The L-1 candidate must also include evidence that the petitioning company is engaged in sufficient business to employ the candidate, including:

  • * Detailed description of the company’s U.S business, including history, number of employees, locations, and any marketing materials. This is especially important if the company is a start up business;
  • * Corporate documents such as financial statements, incorporation documents, and SEC reports;
  • * Evidence of assets such as corporate bank account statements;
  • * Copies of lease or purchase options for buildings or spaces;
  • * Detailed description of the company’s employees, including resumes, job titles, and job offer letters; and
  • * Name and title of officer who will sign forms.

Managerial or Specialized Knowledge Capacity

After the candidate establishes proof of employment with a qualifying U.S. company, he or she must submit documentation that the candidate qualifies for either an L-1A or L-1B classification.

The candidate qualifies for an L-1A classification if (1) he or she is employed in a “managerial” capacity, meaning that the candidate primarily supervises or controls the company’s day-to-day operations, or (2) he or she is employed in an “executive” capacity, meaning that the candidate makes the company’s overall business and policy decisions.

An L-1B classification may be appropriate if the candidate possesses “specialized knowledge” essential to the company’s business affairs. This is a relatively broad classification as it can include specialized knowledge of a company’s machinery or operations, or if the individual has expert knowledge on a a company’s processes and organization.

Additionally, L-1A and L-1B candidates may also include the following supporting documentation:

  • * Evidence of higher education, including degrees, diplomas, transcripts;
  • * Detailed resume evidencing the candidate’s continuous employment with the company for one-year within the three-years preceding the filing of the petition;
  • * Evidence that the candidate was employed in either a managerial/executive or specialized knowledge capacity abroad, and that the candidate will continue this employment in the U.S.;
  • * The candidate’s salary/compensation abroad and in the U.S.;
  • * Corporate organizational charts detailing where the candidate is employed in the corporate hierarchy;
  • * Copies of passports and any other supporting documentation.

Filing Procedures

To apply for L-1 status, the candidate must file an I-129 form with the USCIS, along with the supporting documentation listed above. Note that individuals employed outside of the U.S. are advised to attain an L-1 visa before her or she begins employment with a U.S. affiliate. This is because although an individual may be granted L-1 status, that does not necessarily mean an individual has an L-1 visa. Therefore, though the individual may be allowed to stay in the U.S., he or she cannot travel until they get a visa at the appropriate consulate. To avoid any such inconveniences or legal problems, individuals should obtain a visa before beginning employment in the U.S. This is why it is recommended to hire a good lawyer to assist you in the process. The Shah Peerally Law Group PC has been providing L1A and L1B immigration solutions for many years, feel free to contact us at 510 742 5887.

The preparation of an L1 visa or any kind of visas requires a good understanding of immigration laws and regulations. There are other important issues not covered in this article regarding L1 visas such as the petition to obtain a work permit for L2 dependents and L1 blankets. One should consult a licensed and experienced immigration lawyer before moving forward with any immigration case(s)

If you have any questions or concerns, you should contact an experienced immigration attorney for further details. Our office has prepared many similar applications, feel free to contact us on (510) 742 5887, should you need any additional information.



The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.

3. Radio Show Selected Questions 2

By: Shah Peerally Esq.

1) My wife recently got H1b on October and basically for two months she didn’t have a job and November last week she got a job, so I just want to know how if she doesn’t have paystubs for November and October is that ok or how is that?

- Ok did she transfer?

- No, that was a finished h1b and early the project was dead and then later on it was scraped out.

- Ok the first month of the H1b, there’s no real requirement to have what we call a paystub, but after that there might be a problem at a later stage but it’s not about the monthly paychecks, but what they are looking at meeting of the requirements of the total what they are suppose to pay up, for example, let’s say they’re going to pay $100,000 at the end of the year it has to show $100,000, so the reasons they want the check stubs to show that you maintained status in this case it may be a problem but one way to reset is that leave the country and come back, its only one month that they need the paycheck stubs. Later on, when you apply for GC they can come back and question the maintenance of status.

2) My GC is filed under EB category and I been waiting for last 6 years and I’m about to make a decision to do a job change to a new company what would you recommend to file an new H1 transfer or should I go on EAD?

- Well you don’t really have to; your I-140 is approved right?

- Yes, I-140 Approved

- If you’re I-140 is approved then you are not obviously qualified for EB2 probably or even if you do there are few reason why people go on H1b but I always recommend to use your EAD, but there are few reasons for one, for people, for example, who don’t feel like there I-140 is secured, just to let you know once you’re I-140 is approved and 180 days have passed (after filing of the adjustment of status I-485) the previous company cannot revoke the Form I-140, that means you can keep that and move under AC21 (American 21st Century Act ) you can move to another company on EAD.

- Now the question should you keep the H1B? Are you married? Your wife also has EAD?

- Yes I’m married, yeah she is working on EAD

- Then you don’t really need to go on H1b, that is not required, the only reasons I would ask you to do that if you feel like there is some problem with the company and there might be a chance down the road that an I-140 is revoked, not based on the company own stuff but based on the government thinking that there was fraud or something involved but if that’s not the case you don’t need to keep the H1b going and how many years of H1b have you had going so far? Then the other reason is if your spouse need an H4 because the spouse was not able to get an EAD (priority dates not current).

- I have completed 6 years on H1b and I got extension with the present company for 3 more years.

- And when is it Expiring?

- 2015

- Well this is how it works you don’t really need to do that but if at a later stage you need h1b before 2015, you can actually use that do a transfer and keep that 2015 priority date even if I-140 is revoked and if not revoked you can use it to extend with another I-140 you can extend a new h1b, but honestly you don’t really need it. In this case, it is something your can decide depending on how strong is the company who file for your I-140.

- I can change the job on EAD is that what you’re saying?

- Yes, EAD let me explain to you what you are doing right now, EAD is a work permit you can work anywhere actually, you can work at night at another company which is not related, but the AC21 which is parking of the GC, I call it the parking because you need to have the company to go back to , when the GC comes in your hand so that is why the AC 21 is just a parking you have to go there when you get the GC, there is nothing that prevents you from going back to company A, but we need to do AC21 letter, then you can transfer it’s not really a transfer its just your taking the GC from company A and parking it with company B. So the answer is yes you can go ahead and move on the EAD.

- And my educational qualification is 3 years in Bachelors degree in India so that’s why I’m not qualified.

- That’s why you’re not going to get EB2, Keep it on EB3 but make sure your moving to same or similar position.

3) I have a question starting a business in US I’m on H1, am I able to start a consulting company?

- Not really because, the answer is yes and no – you can own a company but you cannot be active in the company like for example you can own shares in Microsoft but you’re not going to be active in the company so its dormant so that’s allowed but if you’re going to do like daily work like signing checks taking orders and things like that no its not allowed – you’re in violation of your H4 this is why we are very upset because the law just locks people on H4.

- Ok, can I even hire the people?

- The problem is what do you consider active, let’s say you set up the system and then you just own the company your just the share holder, you don’t get involved in the day to day running of the business you should be fine but the problem is that if the immigration look at it will say – ok how did you do that? You have to talk to the people owning your business, you have to do the accounting, and you have to do things like that then you are in violation of the H4, so it is very difficult to run a small business on H4. Even if the law allows you to own a business you cannot be participating in it but there is no loophole really because if there was one people would have taken it. I have a very good article on this H4 options on my website www.peerallylaw.com you can read about it, but technically you cannot have a small business because you will have to be active in it.

- Even on H1?

- H1 same problem, unless there’s an H1 attached to that company, you’re not technically allowed to do any kind of active role, you cannot be a director you can not be in a marketing role, you cannot be in sales, many people ask me well how will they know, well that’s an different issue, that’s a matter of proof, if you lie, it is your call, but we don’t advise anybody to lie, but that’s the way that visa is designed, even working remotely while you’re sitting in US can be a problem.

4) I have a question regarding transfer of a status, so when I apply change of status from H1b to F1 from within staying in the US it might take between 3-6 months but does my current employer gets notified or it can affect my current status in any way.

- Ok you’re on H1b right?

- Yes

- Ok there are 2 rules if you’re transferring from one H1b to another under AC21 rule you can start working on the same day you file the transfer even if it is not approved.

- Second rule no they don’t get notified what is happening it goes only with the new company, now if you don’t want to move before it is approved then do premium processing and then as soon as its filed even the employer knows about it and they send a cancellation notice on your current H1b so it doesn’t matter because the transfer has already passed.

- No sir I’m asking from H1b to F1

- Oh yes, no they don’t get informed about it, so you stay on H1 until the F1 is approved, but sometime they might send a letter by mistake to your employer but no they cannot because it has nothing to do with the employer .

>> Radio Shows Selected Questions (Part 1)

>> Radio Shows Selected Questions (Part 3)

The information contained in these answers is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, radios shows, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally is the managing for the Shah Peerally Law Group PC located in Newark CA. The office main area of practice is Immigration law www.peerallylaw.com Ph:510 742 5887

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4. Do I have to be physically abused before filing a VAWA case?

No –  contrary to popular belief, one does not have to be physically abused to file under VAWA. Mental, physical or even prevention of filing the right immigration papers can be construed as abuse. VAWA is a powerful legislation and it helps women, children and men.  The provisions of VAWA (Violence Against Women Act) can also be used in situations of removal of conditional residence – Form I-751.

You should call our office on 510 742 5887, we will be glad to evaluate your case.

I751

5. Do I have to be divorced before filing VAWA?

No, however, you have only two years after the anniversary of the finalization of the divorce to file the petition. Please make sure that you are filing under the prescribed time.

VAWA is one of the most powerful legislation, however unless you take advantage of it on time, you might miss the chance. Note that your spouse has to be a US Citizen or permanent residence to benefit from the Violence Against Women Act.

In case you are victim of domestic violence, and it was reported to the police, and your spouse is not a US citizen or permanent resident, you might be able to opt for the U Visa.

In case you are victim of domestic violence call 911. And if you want to get some possible immigration benefits, feel free to call us at 510 742 5887

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