Green Card FAQs20 Feb 2012
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?
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 program, and return home to complete the two-year home residency requirement (if applicable) before the green card process is completed, the nonimmigrant intent issue may be overcome.
Question 2. Is there any limit on the number of people on H-1 and green card that a firm can employ?
There is no limitation on the number of foreign nationals on H-1 and/or green card that a company may employ. A company which is dependent on H-1 workers may need to comply with additional DOL recruitment and/or hiring requirements and make attestation requirements. In addition, 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 has improved its records and management practices, requests for evidence asking this question have become more frequent.
Question 3. How long can I remain outside the U.S. without jeopardizing my permanent residency status?
In order for one to be considered as properly maintaining lawful permanent resident (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. As a separate matter, being outside the U.S. for such periods of time can also be a problem when applying for U.S. citizenship.
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., which is valid for a maximum period of two years. Although such a permit would not guarantee reentry to the United States, it would greatly facilitate it.
Question 4. What can I do if I am unable to get a copy of the requested birth (or marriage) certificate?
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.
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, is unavailable, or was late issued. 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.
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; and
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?
If the passport and green card were physically lost, 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 the 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?
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 was filed in the EB1 Extraordinary Ability or EB2 National Interest Waiver (NIW) category, 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?
The labor certification and the I-140 is only applicable for a specific employer and offer of employment 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.
However, it may be possible for one to change jobs without having to initiate a new “green card” case under the American Competitiveness in the 21st Century Act (AC21). Section 106(c) of AC21 provides that the approved I-140 continues to remain valid for purposes of adjustment of status when the person changes employers, if the following two conditions are met:
a) The I-485 or the application to adjust status, on the basis of the employment-based (EB) immigrant petition, has been filed and remains unadjudicated for over 180 days or longer; and
b) The new job offer is in the same or similar occupational classification as the job for which the certification or approval was initially made.
Question 8. I have not yet received the permanent resident card after arriving in the United States four months ago on an immigrant visa. Now I have changed my address in the U.S. What should I do?
In this situation, one needs to file Form AR-11 (Change of Address). One should also update one’s address with the USCIS and inquire about the status of the permanent resident card by calling the National Customer Service Center (NCSC). If the permanent resident card has not been issued, or has been lost in the mail, then Form I-90 should be filed in order to obtain the card.
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. It is important to keep the electronic confirmation that USCIS provides for both change-of-address requests. A change of address may also be provided to the USCIS by calling the NCSC.
Question 9. We recently received our employment authorizations during the last stage of our green card process. If I am the principal applicant and beneficiary of the I-140 and if I were to lose my job for any reason, would my spouse still continue to hold her employment authorization document?
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 application is at risk; this includes losing the employment authorization documents (EADs), unless the circumstances allow the employee to continue the process with a new employer under the AC21 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?
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 birth records have an incorrect date of birth and there is a discrepancy between the date of birth on the passport and the birth certificate?
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 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 for which I can obtain the reentry permit? When should I apply for my permit? What are my obligations after getting the permit to prove our intention to keep our LPR status?
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. Generally, USCIS is also looking to see proof that the permanent residence has been maintained in the time before applying for the reentry permit. The applicant does not need to remain in the U.S. until the reentry permit is issued. Please also note that the USCIS will schedule a biometrics appointment for the reentry permit applicant. If the applicant has already departed the U.S., s/he would need to return to have his or her biometrics taken. 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 and outside of the U.S. It is also important to be able to continue to show that one is maintaining permanent residence in the United States.
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?
A person’s country of chargeability or priority date assignment is generally based on country of birth and not country of citizenship. In this situation, it is likely one would qualify to apply as a national of Tanzania.
Question 14. 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?
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 (permanent residence status) may have been lost already, unless there was a major medical condition that prevented reentry to the United States. In very few instances, might a person be able to obtain a returning resident visa from the U.S. consulate to return to the United States in this scenario.
Question 15. 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?
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 pay the employee’s salary and that there is sufficient full-time work for the beneficiary. The 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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