3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) Question:

I have been sponsoring an employee for an H1-B for 3 years. He has a bachelor’s degree and he had 2 years of experience before he came to work for me. Since he now had a bachelor’s degree and 5 years experience, can I sponsor him for an EB2 petition? I have been told that his experience working for me does not count towards the 5 years, but intuitively it doesn’t make sense.  That would mean that someone else can sponsor him for an EB2 but I can’t. Can you please explain this to me?

 Answer:

It is not just an issue of him using his experience. It is a question of what is the actual minimum requirement to perform in the position. In order to sponsor him under the EB2 category, the position has to have a minimum requirement of a masters degree or the equivalent (generally a bachelors and 5 year of post degree experience) to be able to perform the duties of the position. Since your employee has been working in the position for the past 3 years without a master’s degree or the equivalent, then clearly the job can be done without a master’s degree or the equivalent.

Under certain circumstances you may be able to sponsor the employer for a different position, if a master’s degree is required to perform the duties of the new position. And yes, other employees may be able to sponsor this foreign national for an EB2 for this position, if they can show that a master’s degree is a requirement to perform the duties of the position at their company.

In the meantime, if you file the PERM application early enough, you should be able to continue extending his H-1B until he is eligible to apply for the green card under the EB3 category.

 For more information on the EB2 category, visit:

 http://www.visalaw.com/05jun3/2jun305.html

 For more information on the EB3 category, visit:

 http://www.visalaw.com/05jun4/2jun405.html

2) Question:

My father has been a U.S. permanent resident since 1997. About 9 years ago he took a trip and ended up staying abroad for 4 years before returning to the U.S. He came back to the U.S. on his green card and has remained in the U.S. since then. He is planning to apply for citizenship status but worried about his 4 year absence from the US in the earlier part of his status. Should he be worried about this gap in resident status?

Answer: 

One of the requirements for applying for U.S. citizenship (or naturalization) is maintaining U.S. permanent residence for a continuous period of 5 years prior to filing for naturalization (3 years if filing as the spouse of a U.S. citizen).

Traveling abroad for a trip that lasts more than 6 months creates a rebuttable presumption that the foreign national was not maintaining their continuous U.S. permanent residence. This presumption can be overcome by showing the naturalization officer that the foreign national continued to maintain a U.S. residence despite the 6 month long trip.

However, a trip abroad that lasts longer than a year will cause an automatic break in continuous U.S. residence. This makes the foreign national ineligible for naturalization. When the person returns to the U.S., their continuous permanent residence will begin again from the day they reentered the U.S. on their green card. However, they are not required to accrue another 5 years of continuous permanent residence. Rather they only need to accrue 4 years and a day of continuous permanent residence to be eligible again for naturalization.

 There is an exception to this rule. Some green card holders are eligible to file an N-470 which will allow them to maintain their continuous U.S. permanent residence despite their trip abroad of more than one year.

 So since your father has been continuously maintaining his U.S. permanent residence for more than 4 years and a day since he returned from his trip, the fact that he was abroad for more than a year should not make him ineligible for naturalization.

 P.S. Readers should be aware that long trips abroad of more than one year can result in a determination that the foreign national has abandoned their U.S. permanent residence resulting in the foreign national not being allowed to return to the U.S. on their green card. U.S. permanent residents are cautioned to consult with an immigration law attorney prior to any trip abroad that is expected to last more than one year, and it is recommended that they obtain a reentry permit.