A: If you move back to India, you may be taking a risk of losing your permanent resident status. Generally, individuals who travel for extended periods may be regarded as having abandoned their permanent resident status. While the green card is the proper document for re-entry after an absence of less than a year, permission to re-enter is not guaranteed. The green card is only appropriate for entry if you have not abandoned permanent residence. The legal requirement is that the absence must be for less than a year and the person must be returning to an un-relinquished, lawful permanent residence after a temporary absence. If you need or want to leave the United States for an extended period of up to two years, it is necessary to obtain a re-entry permit. Consult with a competent immigration attorney (ensuring that the person you consult is a U.S. attorney).
Q: My company in Seattle filed for my labor certification in May 2003 in the EB-3 category. Will my application get expedited if it is re-filed under the new PERM program?
A: Depending on your circumstances, it may be risky if your employer re-files your labor certification under the new PERM program. You will lose your priority date of May 2003 if Department of Labor (DOL) makes a determination that your new case is not “identical” to the prior case. The DOL has indicated that they will use a literal interpretation of the word “identical.” Therefore, for example, if your employer has moved to another address since the original filing—even if it is on the same street—the new case will not be considered identical. Based on the DOL current position on this issue, it is advisable to think carefully before re-filing a case under PERM if the goal is to obtain a quick approval and to retain the original filing date. With retrogression already affecting EB-3 cases for nationals from mainland China, India, and the Philippines, and the possibility of the backlog increasing for EB-2 cases for these same nationals, not being able to retain the original filing date for establishing the priority date could pose a substantial risk. This may even impact your ability to extend your H-1B beyond the six years.
Q: I have been out of status since January 2004. I came to the United States on an H-1B but my employer cheated me. I worked for only one month and paid taxes for that one month. Since then I have been working various cash jobs. Is there some way for me to get my stay legalized?
A: I recommend that you consult with an experienced immigration attorney. Depending on your circumstances, there may be some solutions. However, please bear in mind that if you “depart” from the United States, you may subject yourself to 3-10 years bar from re-entering the United States.
Q: I married a U.S. citizen and arrived in the United States as a permanent resident in October 2002. When will I be eligible for naturalization? How soon can I apply?
A: If you are still married to your U.S. citizen spouse and assuming that you meet all the other requirements, you are eligible for naturalization in October 2005, and you can file the application for naturalization 90 days before October 2005.
Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 294-7999.