You may NOT file an I-130 (Petition for Alien Relative) for
E. A husband or wife if you gained lawful permanent resident status
by virtue of a prior marriage to a United States citizen or lawful
permanent resident unless:
1) a period of five years has elapsed since you became a lawful
permanent resident; OR
2) you can establish by clear and convincing evidence that the
prior marriage (through which you gained your immigrant status)
was not entered into for the purpose of evading any provision of
the immigration laws; OR
3) your prior marriage (through which you gained your immigrant
status) was terminated by the death of your former spouse.
Q: What does "current" mean?
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
"Current" means there is no waiting involved. All people
qualified for the category in question can immediately apply
for adjustment of status (if within U.S.) or an immigrant visa
(if outside the U.S.).
Q: What are the benefits/restrictions of a U.S. Permanent Resident?
A: [from Alberto Molina, alberto@cybernet.cse.fau.edu]
- Ability to leave/enter the U.S. at will without the risk of being
denied entry by an Immigration official at the port of entry.
- Right to apply for government-sponsored financial aid for education.
- Permission to work in any company located in U.S. territory
regardless of job function, hours/week, etc. except for some
companies that only hire U.S. citizens.
- Permission to start own business and create own corporation.
- To keep PR, the person must reside in the U.S. for a minimum number
of days per year (does anybody know what's the limit?)
- Permanent residents can get into welfare if unable to get a job.
- Permanent residents can sponsor spouse and unmarried children to
obtain PR status.
- Permanent residency can be revoked if the permanent resident gets
involved in illegal activities. An example is a case that was discussed
in this newsgroup where a permanent resident was deported for drug use.
- Permanent residents cannot vote.
- Permanent residents get Social Security benefits when they retire.
[see the next section regarding SS benefits]
Q: Can I travel abroad?
A: [From Allen E. Kaye, India Abroad, October 21, 1994]
Yes. You can travel outside the United States. When you travel, you must,
o take your green card to show INS when you come back
o keep a record of the dates each time you leave and come back
o always reenter legally (use the border checkpoint)
Q: Do I have to register with Selective Service?
A: [From Allen E. Kaye, India Abroad, October 21, 1994]
If you are a male over 17 but under 26, you must register with the Selective Service. If you do not register, you may be subject to criminal prosecution. If convicted, you could be deported.
Q: Do I have other responsibilities?
A: [From Allen E. Kaye, India Abroad, October 21, 1994]
Yes. Be sure to,
o pay taxes you owe
o report any change of address to INS within 10 days
o have your children who are permanent residents register within
INS within 10 days of turning 14
Q: If I am a permanent resident, can I get public benefits?
A: [From Allen E. Kaye, India Abroad, October 21, 1994]
You can get many public benefits. These include,
o most forms of Medicaid
o food stamps (if you have amnesty as a farm worker)
o unemployment benefits
o Supplemental Security Income (SSI) if you are 65 or over, blind,
or disabled
o Social Security retirement or disability
o help with housing costs
o most federal scholarships and student loans
o county general assistance
However, there are some benefits you cannot get for five years after you
filed your first amnesty application. These are,
o food stamps (if you have amnesty because you came to United States
before Jan. 1, 1982)
o welfare (AFDC)
Your family members who are U.S. citizens are eligible for all forms
of public benefits.
Q: Is it safe to get public benefits?
A: [From Allen E. Kaye, India Abroad, October 21, 1994]
If you or your family members get public benefit, it will not affect your
ability to become a citizen. But before you travel, remember - if you
depend on public benefits, INS can keep you from reentering the United
States. Also, your family members who get permission to stay under the
"family unity" program will have to show that they do not depend on
public benefits when they go to get their green card.
Q: Why should I become a U.S. citizen?
A: [From Allen E. Kaye, India Abroad, October 21, 1994]
If you are a U.S. citizen, you will be able to,
o get green cards for your spouse and unmarried children without a
long wait
o get green cards for your parents, your married children, and your
brothers and sisters
o vote
o get a U.S. passport
o work for the U.S. government or in the other jobs that are closed to
non-citizens
Also, a citizen can't be deported or kept out of the U.S.
Q: Do I need to be a permanent resident to get Social Security benefits?
A: [From Nick Jacobs, njacobs@access.digex.net]
You do not have to be a permanent resident (or any kind of resident)
to get a Social Security retirement benefit. It can be paid to
a person living outside the US who does not have any kind of
US visa. The requirement is to have paid a certain amount of
Social Security tax, in the US, for at least 10 years. Of
course it is difficult to work legally in the US for as much
as 10 years without getting a green card. But it is possible,
and also a person who maintains PR for 10 years, then leaves
the US and abandons PR status, is eligible for a Social
Security retirement benefit.
Q: What are the current requirements of your stay in US to be able to
retain the Green Card.
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
There is NO guaranteed way a person can retain their green card,
unless their permanent residence is IN FACT in the U.S. It is
erroneous to think that so long as you keep visiting U.S. every year,
you may retain the GC. Absolutely not true. As a matter of practice,
INS may not catch you, but they can place you in exclusion proceedings
(sort of the first step in canceling a GC when a GC holder is trying to
enter the U.S.) when they do suspect that you are actually not living in
the U.S.
If a GC holder is planning to be away from U.S. for an extended period of time, it is best to seek permission from the INS in the form of "Reentry Permit" (Form I-131). Even this does not "Guarantee" retention of a GC, but it may be the safest thing under most circumstances.
Because losing a green card is a serious matter, I strongly advise that
you seek the guidance of competent counsel for you individual case.
Q: How do I maintain my Green Card if I am traveling abroad for an extended
period of time.
A. [from Rajiv S. Khanna, rskhanna@immigration.com]
Before I answer that question, let me strongly recommend, in view of
the seriousness of issues involved, pleases consult competent counsel
regarding the specific facts of your case.
Overall, the answer is exceedingly complicated.
As a preliminary matter, please note that a permanent resident
alien has no statutory or other legal guarantee that assures him a
right to return if he is outside the United States. If he leaves
this country, even on a brief and temporary mission, he may be
unable to return unless he complies with the requirements of the
immigration laws.
Since 1924, the immigration laws have provided for the
issuance of reentry permits to permanent residents of the United
States who wished to make temporary visits to foreign countries.
The reentry permit is one of the acceptable documents that may be
presented by aliens seeking to enter the United States.
Nevertheless, please note, a reentry permit does not infallibly
assure entry into the United States. At most, it is prima facie
evidence of the bearer's lawful status. The reentry permit is
equivalent to a visa and thus relieves its rightful holder from
other documentary requirements. The permit shows that the alien is
returning from a temporary visit abroad. But the statue emphasizes
that the reentry permit has no other effect under the immigration
laws.
The basic prerequisite for obtaining a reentry permit is that
the applicant prove that he has been lawfully admitted to the
United States for permanent residence. It must appear that he has
not abandoned his residence in the United States. He must
establish also that his application is made in good faith in
connection with a temporary visit abroad. The regulations provide
that the reentry permit be issued for a two-year period and not be
renewable. The two-year period runs from the date the permit is
issued and not from the date of the application.
During the period of its validity the permit can be used for any
number of reentries. Moreover, the reentry permit will be deemed
unexpired if its holder departs on a continuous trip to the United
States before its expiration. The permit must be surrendered to
the INS when its validity expires.
In order for you to maintain your permanent resident status,
it is required that your absence abroad must be temporary. The
inquiry revolves around whether an alien intended to retain his
permanent residence status by returning to the United States
"within a relatively short period of time." The term "temporary"
will vary with the facts and circumstances of each case; the
intention of the alien, when it can be ascertained, will control.
Moreover, the intention at the time of departure must be to return
within a relatively short period, fixed by some early event.
Among the factors ordinarily considered in determining whether
the absence was temporary are the duration of absence, the location
of the alien's family ties, property holdings, and job, and his
intention with respect to the location of his actual home. The
government is under no obligation to inform him that his absence
will terminate residence. Although the length of the alien's
absence is not the only factor, a lengthy absence coupled with
establishment of ties abroad may establish abandonment of resident
status. Another factor that may be considered is whether the
traveler had a definite reason for proceeding abroad temporarily.
A lengthy absence may, in certain circumstances, be
satisfactorily explained. Thus, where an alien's absence abroad
was due to his employment by an American company and he maintained
ties in the United States, and where his application to preserve
residence continuity for naturalization purposes had been approved,
the alien's lawful permanent residence status was not lost.
Moreover, loss of naturalized United States citizenship by voting
in a Mexican election during a visit there did not, by itself,
terminate status as a lawful permanent resident of the United
States.
Some of the factors that have been examined in various decided
cases in this area are:
A. Length of residence in the U.S. since becoming a
permanent resident - generally, the longer you have
resided in the U.S., the stronger your case;
B. ownership of real estate in the U.S.;
C. whether or not U.S. income tax returns have been filed
during the time of absence. In this regard, please note,
YOU MUST NOT FILE INCOME TAX RETURNS AS A NON-RESIDENT.
Please consult with a CPA or tax professional as to what
other options exist.
D. How many prior reentry permits have been granted to the
alien;
I recommend the following specific measures in addition to the
material provided above:
A. If you own real estate in the U..S. - do not sell it
prior to departure;
B. Maintain your main savings account in the U.S.
C. Continue to maintain your drivers license and all credit
cards
D. Pay U.S. taxes as a resident
E. Maintain correspondence with all your friends and family
in the U.S.
F. Keep all your telephone bills showing various calls to
the U.S.
This list is not meant to be exhaustive. The rule of common
sense prevails.
Q: After getting stamped in the passport for employment based immigration,
how long is an employee required to work with the employer that
sponsored the employee for immigration.
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
There is NO prescribed time limit. There are a couple of considerations
that must be borne in mind. The basis for getting a GC are that you took
up a "permanent" position. If you leave too soon, INS may claim that you
did not intend to take the job up on a "permanent" basis.
"Permanent" does not mean forever. But it also does not mean that you may
leave the day after you get the green card. Unfortunately, there are no
bright line tests in this area. (Answered 06/24/94 -- Please leave the
date in, so people know how recent the answer is.) It is imperative that
you seek the opinion of competent counsel in this regards.
Q: Please discuss the consequences, immediately after obtaining
immigration (meaning within a day or two).
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
a. If the employee voluntarily quits/leaves the employer.
You may have a problem.
b. If the employer fires the employee for performance related reasons.
You may have a problem.
c. If the employer fires the employee because of the personality
problems. You may have a problem.
d. If the employer lays-off the employee for economic reasons (lack of
adequate business or resources).
You may have a problem.
Q: If the employer lays-off the employee to avoid payment of the agreed or
the promised salary (as stated on the Labor Certification or the Job Ad.)
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
You may have a problem.
Q: Can a Permanent Resident Visa be revoked for any of the above stated
reasons?
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
Yes
Q: Under what circumstances can a Permanent Resident Visa be revoked.
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
Lots of circumstances: criminal convictions being the foremost;
abandonment of permanent residence.
Q: What should I do if I don't have my birth certificate?
