World Journal Weekly Q & A - March 11, 2012What Are the Options for LPR's Leaving the U.S. for More Than A Year Without Reentry Permits - Can They Obtain a Waiver and Keep the Green Card?Mrs. He asks: My husband and I are 78 years old. Our green cards were obtained in 11/2004 and will be expired in 2014. However, my husband has been sick since 2006 and he has been in China since his 2nd trip back in 6/2008. Because of his illness, I spent most of my time in China with him. I tried not to stay in China over 6 months per year, but in 2010, I spent in China for over 10 months. His condition has been stabilized now and he is anxious to come back to the U.S. to be with me for good. My friends told me because of my husband’s illness, he should be allowed to enter the U.S. if he could bring his medical records with him and provided that I went to China to bring him in. My friends said the immigration officers might let us in because we are old, but most likely my husband’s green card would be taken away. I worried if that happens his condition would worsen right then at the airport. Is there an emergency room at the airport? What should I do since I do not speak English? Do we need attorney at the airport? Even if my husband is allowed enter the U.S., can he get his green card back? Dear reader: U.S. immigration law generally holds that green card holders who leave the U.S. for a year or more without a reentry permit have abandoned their permanent residence. Exceptions can be given where the reason for the extended absence is outside the control of the permanent resident. In your case, you could present all the evidence to the American consulate or embassy in China and request the issuance of a special immigrant visa. With the approval, your husband could enter the U.S. as a permanent resident without fear of incident at the airport. Your friends' idea to have him attempt to enter the U.S. with his medical records and explain the situation to Customs and Border Protection (CBP) at the airport has some merit as an immigration inspector may be more sympathetic than a consular officer, but the downside is the possibility of a harrowing experience at the port of entry. Insofar as your question as to whether there is an emergency room at the airport, airports are not hospitals. However, that being said, we understand that medical services are available at airports in Boston, Chicago, New York JFK, Los Angeles, and San Francisco, etc. Although you do not speak English, CBP usually has personnel who can speak Chinese. Insofar as attorneys are concerned, CBP will tell you that you are not entitled to an attorney at the airport. If the agency allows your husband to enter the U.S. with a waiver, it will not take away his green card. If CBP declines to give your husband a waiver, he is entitled to contest his excludability with an immigration judge. In such event, CBP would probably release him and give him a date to appear in the court. At that time, he is entitled to appear with a lawyer of his choosing. H-1B Holder Nearing Six Year H-1B Maximum Has Employer Now Willing to Sponsor for Green Card and Another Company Willing to Pay More Money - Of What Should She Be Aware?An H-1B holder asks: I have had two H-1B employers, and my present one has offered to sponsor me for the green card. I have had H-1B status since October 1, 2007, and my present extension is until September 30, 2013. I also have another company which has offered me a position 25% higher than the present pay. We have not talked about green card processing. What are the pros and cons of going over to a new company at this time? Dear reader: I will assume that you have not had a labor certification or I-140 petition already filed on your behalf. Six years is the maximum limit on H-1B status barring a number of exceptions. Time that you have been physically outside the U.S. can be recaptured if you decide to go with the new company and it wishes to transfer your H-1B status. During the transfer process, you are allowed to work with the new employer. However, U.S.C.I.S. would consider your status no longer legal if it denied the H-1B transfer and you have left your current H-1B authorized employer. Processing of an H-1B transfer request usually takes three-four months. You and the new employer can expedite the adjudication through premium processing under which your employer or you would pay an additional $1,225, and U.S.C.I.S. would reach your case within 15 business days of filing. Another consideration is the timing of a green card application. H-1B extension past the six years can be given where a labor certification application has been pending for 365 days or an I-140 petition has been approved where there is no current availability for the category. To take advantage of the first exception without break in your employment, your labor certification application would have to be filed by October 1, 2012. As the labor certification process contemplates pre-recruitment, you and your petitioning employer should add another four-five months onto the processing time to conduct the recruitment. A reasonable time to start the processing would probably be May. The second exception would come into play if the labor certification is approved and the subsequent I-140 petition also approved. This would apply even if one year had not elapsed from the date of the labor certification filing. In such case, you would be eligible for H-1B extension if the priority date is not available for you to file an adjustment of status application (form I-485). If you decide to go with the new employer and it does not offer you a green card opportunity, you could return overseas for one year after your H-1B period has reached its maximum, and be eligible to return for a new period of six years under H-1B status. In that event, however, you would be subject to the H-1B cap of 85,000 annually, which is given out on a first-come first-served basis and in some past years has not lasted past the first week in April. We note, however, that H-1B cap numbers for the past two fiscal years have been available for months after the first qualifying date for applying because of our bad economy and employer hesitancy over new hiring.
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Copyright © 2003-2012 Alan Lee,
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