AskVisalaw.com

Posted on: December 30th, 2019
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In our AskVisalaw.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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QUESTION: Is there a specific amount of time that a green card holder can spend outside the US without abandoning their green card?

THE IMMIGRATION ANSWER MAN – ARI SAUER: US Permanent Residents (green card holders) are required to maintain the US as their primary permanent residence. When a Permanent Resident fails to maintain the US as their permanent residence the US government can determine that they have abandoned their US Permanent Residence.

Abandonment is really a factor of continuing to maintain one’s permanent residence within the US. The length of time spent outside the US is just one factor that they use to determine whether someone is maintaining the US as their permanent residence. Trips outside the US that are longer than 180 days can trigger CBP to question whether the person was continuing to maintain he US as their permanent residence. If the trip is for longer than a year, it can create a presumption that the person abandoned their US residence. If someone is planning on taking a trip that is longer than a year, they should apply for a reentry permit. But the reentry permit just allows them to return to the US after a trip of longer than a year, it does not get rid of the requirement to maintain the US as the permanent residence.

Some other examples of factors that the government will consider when determining whether someone has been maintaining their US permanent residence include:

 

  • The reason for the trip. Whether the trip was for a temporary purpose.
  • How much time the person has been spending outside the US compared to the amount of time they have been spending within the US.
  • Whether the person has been working abroad. Also whether the employment was in a permanent position or whether the employment was in a position that was temporary in nature.
  • Whether the person continued to have a permanent home in the US during their trip(s) abroad. For example, they continued to own their home or to pay rent for their home during their trip(s) abroad.
  • Whether the person has filed US tax returns each year as a US resident. Filing US tax returns as a non-resident (using 1040NR or 1040NR-EZ) or failing to file US tax returns because the person did not consider themselves a US resident, is a strong indicator that the person was not maintaining the US as their permanent residence.
  • Whether the person’s family members remained in the US during their trip(s) abroad.

 

In addition to the issue of not abandoning your US permanent residence, there is also the issue of eligibility to apply for naturalization. For naturalization, there is a requirement to have been physically present in the US for at least 50% of the time, during the past 5 years as a permanent (3 years for certain spouses of US citizens). There is also a requirement to maintain continuous US residence during the period, which is broken by a trip abroad of longer than a year (even if you have a reentry permit). Trips of longer than 180 days, but less than a year, create a presumption that there was a break in continuous US residence, which the person will need to overcome by presenting evidence that they continued to maintain their US residence during the trip abroad.

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QUESTION: I have a valid H1B visa stamp. But my employer in the US does not have a project for me to work on at the moment so I cannot come to the US using my H1B visa. My husband also has a valid H-1B visa stamp and is in the US.  For personal reasons I need to travel to him urgently. Can I apply for an H4 visa? If I am granted an H4 visa will that cancel my H1B visa? If I come to the US on an H4 visa, can I change my status to H1B later?

THE IMMIGRATION ANSWER MAN – ARI SAUER: Someone with a valid H-1B visa in their passport is still able to obtain an H-4 visa in their passport as well, where their spouse is in H-1B status. Obtaining the H-4 visa does not cancel the H-1B visa. You are allowed to have more than one valid nonimmigrant visa at the same time. However, you can only use one visa at a time. So someone with both a valid H-1B visa and a valid H-4 visa would have to use one or the other when they travel to the US. If the person enters on the H-4 visa and then wants to work in H-1B status for their H-1B employer, they will first need to leave the US and return on their valid H-1B visa. Alternatively, their employer could file a new H-1B petition for them to change their status from H-4 to H-1B, but they would need to wait until that petition for change of status was approved and the start date was reached before they could begin working in H-1B status.

A word of caution: while obtaining a second nonimmigrant visa does not invalidate the first nonimmigrant visa, if the consular officer determines that you are no longer eligible for the first nonimmigrant visa, they have the ability to cancel that visa. For example, if someone has a B-1/B-2 visitor visa in their passport, and the consular officer determines that the person has immigrant intent (they plan to stay in the US and apply for a green card) during the person’s application for an H-1B visa, the consular officer may choose to cancel the B-1/B-2 visitor visa.

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