Published on the World Journal Weekly on February 22, 2015

Q & A 1. 2.

Q&A 1.


Where Parent’s Green Card Expires and Parent is Outside U. S., How Can Parent Keep the Green Card If In Taiwan?


May Reader:

My parents both over 80, they hold green card and have Medicaid in California and they still visit family in Taiwan annually. My father suddenly got sick and was unable to take the flight back to the U.S and stay in Taiwan. My mother has to stay in Taiwan to take care of my father. My father's condition has gotten better and wants to return to the U.S. My mother realized her green card has already expired and she has stayed out of the U.S for over a year. My parents are both sick, they need to come back to the U.S so that we can take care of them and to keep their Medicaid. Can my mother come back with the expired green card and request Immigration court to keep her green card? Will the custom let her in? We afraid that if they come in with a tourist visa and put in the application and their Medicaid will be invalid. (They will have new green card and can't keep the original Medicaid). If there better way to keep their Medicaid?

Dear reader,

We do not profess to have great familiarity with Medicaid and so cannot advise you on your parent’s options to keep it. On the immigration question, if your mother wishes to keep the green card, she would likely have to seek a special immigrant returning resident (SB –1) visa from the American Institute in Taiwan. She would complete form DS-117, Application to Determine Returning Resident Status, and provide documentation that her stay abroad was for reasons beyond her control and for which she was not responsible. Such evidence would include your father’s medical records. To your question of whether your mother can come back with an expired green card, she may find it very difficult to board the airplane as airlines are very careful about only boarding people with valid visas or green cards or U. S. passports as they are otherwise liable for carrier fines.


Q&A 2.

AC – 21 for Employment Based Cases – Can the Case be Ported to Another Employer Without Need to Start All Over Again Where the Applicant Does Not Wait 180 Days After I-485 Filing to Move Employment?

An Employee asks:

I am in the difficulty that I will have to leave my present employment. I am on H-1B, the present employer has already sponsored and I have an approved I-140 petition for the green card. I also filed the I-485 adjustment of status applications for myself and my family recently. The new employer wants me to start as soon as possible and it has not yet been 180 days since filing to qualify me for portability under AC-21. Can I start working for the new employer before 180 days that the I-485 is pending?

Dear reader,

In AC-21 (American Competitiveness in the 21st Century Act) portability, the I-485 application must be pending for 180 days for the provision to kick in. U.S.C.I.S. asks that you and the original sponsoring employer had the intention that you work for the sponsor at the time that the I-140 petition and I-485 adjustment of status application were filed. Otherwise where 180 days have passed since the filing of the I-485 application, the visa applicant is able to port the employment to the second employer in the same or similar occupation.

Q&A 3

Does Time Outside the U. S. Delay the Time That An Applicant Can Apply for Citizenship?

A green card holder asks:

I got my green card in April 2010 and want to start to apply for my citizenship in April 2015. I have gone back to China in the past couple of years the never stayed more than 6 months each year. The reason is that my father has been ill and is very old. I have altogether stayed 37 months in the U. S. Is it possible for me to apply for citizenship in April?

Dear reader,

Where you never stayed more than six months outside the US at one time and have spent 37 months in the US since getting your green card in April 2010, it would appear that you are eligible to apply for citizenship in April 2015 (five year rule). You only have to show 5 years of continuous residence, not physical residence. The time that you spent outside the U. S. is not enough to delay your application for naturalization. Under U.S.C.I.S. interpretations, you can file the application 90 days ahead of time.

Q&A 4

Shedding Light on a Device Used by U.S.C.I.S. – the Service Motion

A reader asks:

I have heard of the term “Service motion”, but do not know what it is. Would that be good or bad for my case which is pending at this time?

Dear reader,

When U.S.C.I.S. decides to reopen the matter on Service motion, that means that nobody is paying a fee to have the case reopened. Where U.S.C.I.S. has made an egregious error in a case, some attorneys will request U.S.C.I.S. to reopen on a Service motion as the client should not have to pay for a motion. On the other hand, U.S.C.I.S. sometimes recognizes its own error without prompting from anyone and will move to reopen its prior decision. Sometimes this may be favorable to the person whose case is being reopened and sometimes not.

 

Copyright © 2003-2017 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.

 
   
 

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