IMMIGRATION
U.S. Permanent Residency
Permanent resident or 'green card' status allows an individual to live permanently in the United States with the right of employment and the ability to travel in and out of the U.S. Immigrant visas are primarily available in four basic categories:
- Employment Based Immigration
- Family Based Immigration
- Asylum
- Special Laws for citizens of certain countries
Detailed information is available by clicking the appropriate category on our website. General information can also be found at: "How Do I" Guides for Permanent Residents.
Maintaining Permanent Resident Status
After permanent residency is approved, we are frequently asked 'Can I lose my green card status?'. For example, international employees often express concern about the effect that a new work assignment abroad may have on their immigration status. They are justified in their concern and wise to seek advice before undertaking the assignment.
- What is permanent resident status and how is it different from U.S. citizenship?
- Can permanent resident status be lost?
- What measures can be taken by permanent residents temporarily living abroad to avoid a finding of abandonment?
1. What is permanent resident status and how is it different from U.S. citizenship?
'Lawful permanent resident status' is defined under U.S. immigration law as an alien 'lawfully accorded the privilege of residing permanently in the U.S.' So a permanent resident has the privilege of being able to reside in the U.S. on a permanent basis and has virtually unrestricted authorization to work in any job, for any employer, including self-employment; with the exception of certain positions that require U.S. citizenship. Proof of permanent resident status is the 'Green Card', Form I-551. The card is valid for 10 years and must be renewed, however, permanent resident status itself does not 'expire'. Unlike a U.S. citizen, a permanent resident has no right to vote in a U.S. election or serve on a jury.
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2. Can permanent resident status be lost?
Yes, in several ways: One is by becoming a U.S. citizen. After 5 years in permanent resident status (3 years, if married to a U.S. citizen) one is eligible to apply to become a U.S. citizen by naturalization. Once naturalized as a U.S. citizen, one ceases to be a U.S. permanent resident. A permanent resident can also voluntarily give up his 'green card' by signing a form before a U.S. consular or immigration officer to 'relinquish' status. A permanent resident can be determined to be subject to a ground of 'inadmissibility' or 'removability' listed in the Immigration Act. These grounds include criminal offenses (even minor offenses involving controlled substances, firearms, alien smuggling, and domestic abuse), security related grounds, communicable disease, etc. These problems can be uncovered upon return to the U.S. after international travel as the various security clearance databases are checked, or can be triggered by an arrest or by detaining and questioning by a law enforcement or immigration officer.
Finally, permanent resident status can be lost through abandonment. Abandonment can occur due to extended periods of travel abroad, such as an overseas work assignment. The test used to determine whether permanent resident status has been abandoned is: 'Whether the alien is returning to an un-relinquished lawful permanent residence in the U.S. after a temporary absence abroad'. This requires less than a permanent dwelling place in the U.S., but more than mere desire to retain permanent resident status. The permanent resident's intention must be for the absence from the U.S. to be only temporary, there must be evidence documenting this intent. A 'totality of the circumstances' analysis is used by Immigration to determine whether a permanent resident has 'abandoned' permanent resident status and no longer has an intent to be only 'temporarily absent'. Factors that are considered include: close family ties in the U.S.; property holdings in the U.S.; whether the employer is a U.S. company; the reason for the absence; duration of the absence; business affiliations in the U.S. and abroad. The 'burden of proof' is on the government to prove abandonment of lawful permanent resident status by clear, unequivocal and convincing evidence.
An immigration officer reviewing the case must be convinced that the absence from the U.S. is temporary and the permanent resident has the intent to return to the U.S. upon completion of the assignment abroad.
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3. What measures can be taken by permanent residents temporarily living abroad to avoid a finding of abandonment?
- File U.S. Federal Income Tax returns as a 'U.S. Resident'; filing as a 'Non-Resident' raises a rebuttable presumption of abandonment.
- Apply for a Re-Entry Permit - (note that this does not guarantee admission to the U.S. and a finding of no abandonment of status, however, it is a declaration which helps establish the permanent resident's intent not to abandon status) The application must be filed while the permanent resident is physically present in the U. S., however, he can then depart and have the permit mailed to him abroad upon approval. A Re-entry permit is normally issued with a validity period of 2 years, so this document may allow a permanent resident to re-enter after up to a 2 year absence. After a permanent resident is absent for more than 4 years of the 5 years preceding an application, validity of only 1 year is given. Apply using Form I-131 and file only with the CIS Nebraska Service Center; check the CIS website for instructions and processing times at www.uscis.gov.
- Document ties to the U.S. such as:
- Proof of property ownership; especially a home
- U.S. bank and savings accounts; credit cards; and insurance policies
- U.S. driver's license
- Family members residing in the U.S.
- Employment with a U.S. company abroad & temporariness of the international assignment
- Any other evidence of the intent to return to the U.S. after a temporary absence
- After an absence of longer than 1 year, the 'green card' cannot be used to re-enter the U.S. A 'boarding letter' may be obtained from the closest U.S. embassy or consulate, and this will be issued at the officer's discretion based upon proof that permanent resident status has not been abandoned. Upon return to the U.S., the immigration officer will also ask questions to determine whether permanent resident status has been abandoned, and may refer the traveler for further immigration proceedings. Permanent residents returning to the U.S. after an extended absence of six months to a under a year should be prepared for questions from the Immigration officer to determine the circumstances of the absence. It is advisable to carry documentation of the temporariness of the absence and ties to the U.S. as described above.
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Temporary Work Visa
What is a temporary or nonimmigrant visa?
A visa is a permit to apply to enter the United States. A nonimmigrant visa is given to someone who lives in another country and wishes to come temporarily to the United States for a specific purpose. Nonimmigrant visas are given to people such as tourists, business people, students, temporary workers, and diplomats. Foreign citizens must apply for a visa at an American embassy or consulate abroad, when desiring to travel to the United States. A consular officer decides whether the traveler is qualified for a visa. The visa classifies the visit as business, tourism, etc. Each visa classification has its own requirements regarding how long a person can stay in the U.S. and what activities (eg. work, study, perform, etc.) are allowed. The visa is usually valid for multiple visits to the United States during a specified period of time. Some non-immigrant visa categories require that the foreign national apply for the visa directly with the U.S. Consulate or Embassy abroad. Other visa categories require that a petition first be filed by the foreign national or his employer and approved by the Department of Homeland Security's US Citizenship and Immigration Services (USCIS).
The visa allows a foreign citizen to travel to a port-of-entry in the United States, such as an international airport, a seaport or a land border crossing. At the port-of-entry, an officer of the Department of Homeland Security (DHS) decides whether to allow him to enter and how long he can stay. An Arrival/Departure Record (Form I-94) is created by the DHS officer when the traveler is inspected upon arrival in the United States. It is sometimes possible for someone who is in the U.S. in one non-immigrant visa category to change to a different one. This is called an "exchange of status" and requires that an application be filed and approved by USCIS.
Below is a listing of some of the common temporary U.S. visa classifications and links to detailed information provided by the U.S. Department of State and U.S. Citizenship and Immigration Services. PRASLA LAW FIRM is not responsible for the content of the articles. Changes in immigration laws and policies occur frequently and the articles may not be immediately updated. Please be advised that interpretation of general information should not take the place of legal advice provided by an experienced immigration lawyer familiar with the specifics of your case.
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Naturalization and Citizenship
Citizens of the United States are entitled to live and work permanently in the U.S., vote in U.S. elections, serve on juries and hold a U.S. passport. U.S. citizens can sponsor their spouse, unmarried children under age 21, and parents as immediate relatives. These relatives do not have to wait for a visa number to become current. An individual may acquire U.S. citizenship in a variety of ways:
Birth in the United States
Children born in the U.S. are automatically U.S. citizens, regardless of the immigration status of their parents.
Birth outside the U.S. to U.S. citizen parents
Certain children born abroad to U.S. citizen parents are automatically citizens of the U.S.
Naturalization of a parent
A child born outside the U.S. may automatically become a U.S. citizen if one parent becomes U.S. citizens prior to the child's 18th birthday.
Adoption by U.S. citizen parents
Certain children adopted and in the physical custody of their U.S. citizen parents for at least two years may acquire U.S. citizenship. The child must be under the age of 16 at the time of the legal adoption.
Naturalization
The general rule is that anyone over the age of 18 who has been a legal permanent resident alien for at least five (5) years may apply for naturalization. The applicant must have been physically present in the U.S. for at least 30 months out of the five years prior to the date of filing of the application and must have resided for at least three months within the state in which the application if filed. The applicant must demonstrate good moral character, be attached to the principles of the U.S. Constitution, be willing to bear arms on behalf of the U.S. or perform other work of national importance, and must not otherwise be barred from naturalizing, e.g., as having committed an aggravated felony. All naturalization applicants will be fingerprinted by the U.S. Citizenship and Immigration Services (USCIS) and have their criminal backgrounds reviewed by the FBI. The applicant must demonstrate a basic ability to read, write, speak and understand the English language. The applicant must also pass a short oral or written test on the history and government of the U.S. Finally, the applicant must be interviewed in person by an USCIS officer. If the applicant is approved for naturalization, the applicant will attend a public ceremony and take the Oath of Allegiance to the United States. After taking the oath, the applicant will return the green card to the USCIS and receive a certificate of citizenship. This certificate of citizenship can be used to obtain a U.S. passport.
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There are many special exceptions and provisions of the law for certain applicants for naturalization. Please consult Prasla Law Firm regarding which options may be applicable to your case.
Below is a listing of links to detailed information on citizenship and naturalization provided by the U.S. Department of State and U.S. Citizenship and Immigration Services.
Prasla Law Firm is not responsible for the content of the articles. Changes in immigration laws and policies occur frequently and the articles may not be immediately updated.
Please be advised that interpretation of general information should not take the place of legal advice provided by an experienced immigration lawyer familiar with the specifics of your case.
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“DREAM” Deferred Action for Childhood Arrivals (DACA) Benefits
"DREAM" Deferred Action
USCIS NOW ACCEPTING APPLICATIONS FOR DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)
On Friday, June 15, 2012, the Obama Administration announced that the Department of Homeland Security should defer legal action against individuals that meet specific requirements. The Deferred Action for Childhood Arrivals (DACA) program covers certain elements of the more commonly known DREAM Act. On August 15, 2012, U.S. Citizenship and Immigration Services (USCIS) began accepting applications for DACA benefits. USCIS has indicated that the processing time for DACA applications could be at least several months.
Who Qualifies?
The requirements include that applicants:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safet
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Information graphic: Who can be considered?
Information graphic: Guidance on consideration for employers
It is anticipated that this action will affect over 800,000 individuals.
What Else Should I Know About Deferred Action?
Deferred Action is NOT permanent residence or U.S. citizenship, but rather a means by which eligible individuals may apply for employment authorization. Since U.S. Citizenship and Immigration Services (USCIS) is now accepting applications, Prasla Law Firm attorneys are filing applications for eligible individuals.
Beware of Scams!
It is recommended that individuals be wary of fraudulent legal advisors (known as "notarios") when applying for deferred action. Notarios have no legal background (they are not lawyers) and cannot legally practice law or represent you. An immigrant's case can be delayed by notarios acting in bad faith, resulting in penalties and even deportation.
» National Immigrant Youth Association (NIYA) - Important Warning for People Interested in Applying for the Deferred Action Program
» AILA - Consumer Advisory: Don't Get Scammed! (English)
» AILA - Alerta al Consumar: ¡No se deje Engañar! (Spanish)
How Should I Prepare?
In order to minimize any unnecessary denials or delays, prepare as many identifying documents as possible. For example:
» List of recommended documents (PDF version available)
» Lista de documentos recomendados (español) (disponible en versión PDF)
For more information about Deferred Action for Childhood Arrivals or to consult with Prasla Law Firm attorneys about your eligibility, please call (832) 230-4125 or email znp@praslalaw.com.
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