Q & A February 5, 2006

Q & A 1.

Q&A 1.

What is the Green Card Date – Ramifications on Keeping the Card?

Wang Reader Asks:

My green card has been approved but I have not received it yet. However, I was terminated from my job unexpectedly. If I could not find a new job in time, would I still be able to receive my green card?

Dear reader:

I assume from your question that you were terminated from your job unexpectedly after your I-485 adjustment of status application was approved by either letter or I-551 stamp, and before you have received the green card itself. There appear to be multiple issues in connection with this seemingly simple question.

When is permanent residence given? The U.S.C.I.S. has given conflicting signals over the years on this issue. In previous years, practitioners often asked Legacy INS whether it was the date of approval by the examiner, or the date of a later approval letter, or the even later I-551stamp of temporary proof of permanent residence stamping date (when the approval letter asked applicants to go to the district office for stamping). Practitioners have persisted in asking because certain rights are automatically bestowed upon aliens when they became permanent resident. The answer by Legacy INS was that the relevant date for finality was the date to be found in the "as of" section of the stamped I-181 creation of permanent residence record. However, we have seen situations in which individuals have already obtained one or two I-551stamps (which are supposedly given after the case is approved) but never received the green card, and upon inquiry discovered that U.S.C.I.S. considered the cases still open and the applications still pending. Recently the California Service Center in answer to an inquiry by the American Immigration Lawyers Association chapter stated that the "Welcome notice" is considered an approval by U.S.C.I.S.. But does that mean that all the other letters from the U.S.C.I.S. service centers saying that cases are approved or I-551 stamps mean nothing? If a green card never comes, will U.S.C.I.S. deny that the case was ever approved by the examiner, that the approval format if other than the "Welcome notice" was a mistake, and that the case is still pending?

Can you obtain the permanent residence card even if you did not find another qualifying employment and notify the Service of such by the time that the U.S.C.I.S. sends or has sent you the "welcome notice" or request to do I-551 stamping? At this point, you should be able to receive your permanent residence card even if you do not have a new job unless U.S.C.I.S. receives negative information on your case. The fact that you have received information that your I-485 has already been approved usually means that U.S.C.I.S. will most likely not be asking you for further evidence before sending you the green card.

Will you be able to keep the green card under these circumstances? If there is any problem at all after receiving the card, it may manifest itself in all likelihood upon a reentry to the United States or upon your application for citizenship. In a later entry to the U.S., a Customs and Border Protection inspector if questioning you may believe that you did not have the right to the green card, and in a naturalization application, the facts of your immigration history will again be reviewed by the naturalization examiner. However, assuming that your current case is employment based and requires you to show current employment with a specific employer at the time of receiving your residence status, you might nevertheless be able to use a portability argument (under which individuals who have already had the I-485 application pending for 180 days and the I-140 petition approved are able to change employers to the “same or similar employment” and still keep the validity of the I-140 petition) if you find qualifying employment prior to the U.S.C.I.S.' sending you the "welcome notice" or permanent residence card. You would base the argument on the stance that permanent residence is not approved until the "welcome notice" or the card is in hand. If U.S.C.I.S. argues that the date for permanent residence is when the I-485 approval letter is sent or the I-551 stamp placed on the passport, you could argue that you had a job at that time and only lost it after the I-485 was approved. In that circumstance, U.S.C.I.S. may further argue that you did not have an intention to keep the job at the time that the I-485 was approved. You might then be able to rebut this argument by showing that you had an actual intent to keep the job, but that there were unexpected circumstances which forced the employer to withdraw its job offer.

Is there any benefit to moving to “same or similar” type employment after your permanent residence is approved? It is not clear whether you would be able to use a portability argument by finding “same or similar employment” after the date that it is finally concluded that permanent residence is approved, but such a showing thereafter might influence an examiner's thinking that you did have an intention to remain with the same employer at the time that your case was approved.

Copyright © 2003-2006 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.