Immigration Q & A February 2010
Author by Edward Boreth
Are there still H1-B’s left for the 2010 quota?
As of December 22, USCIS announced that it has received approximately enough H-1B petitions to fill the Congressionally-mandated 65,000 cap for the fiscal year 2010. This means that there are no more new H1-B’s available for fiscal year 2010. The next fiscal year begins on October 1, 2010 and the first day of filing for petitions for 2011 will be April 1, 2010. Of course some H1-B petitions are not subject to the cap and are available year round, such as petitions filed by Institution of Higher Education or non-profit research organizations.
I have been a permanent resident for about 3 years and am waiting to apply for citizenship in about 2 years. However, my employer wants to send me to work at their Singapore office for 18 months. Will this interfere with getting my US citizenship?
Generally, you must have more than 30 months physical presence in the U.S. within the last 60 months to qualify for US Citizenship. Additionally, any absence of more than 6 month raises what is called a rebuttable presumption that you have abandoned you residence and therefore cannot get citizenship. What this means is that it is up to you to prove with documents (such as property records, taxes, employment records, etc. ) that you maintained your residence in the United States during your absence. If your absence is more that one year, you are considered to have abandoned your residence, and you will not meet the physical presence requirement for citizenship. At that point, you may also be at risk of losing your green card. However, if you will be working for a US company abroad, you may apply for a reentry permit to preserve your residence. This is like a passport that allows you to reenter the US after having been out for more than one year and not lose your permanent resident status (the permit is usually valid for two years). The reentry permit does nothing for your citizenship, though. There is a special document you may get to preserve your residence for naturalization purposes. By receiving this document, you may leave the US and have your time outside the US counted towards your citizenship. There are some very specific rules as to who may get this document – usually you need to be employed by a US company or an international organization. There are also requirements as to the timing of that application, so you should review your specific situation carefully with an immigration attorney.
Why is my immigration case taking so long?My employer filed for my green card him in 2004 and I still have not received my permanent residence! I recently talked to my friend who told me that he got his green card in 3 months! Do I need to change lawyers?
The delays in your case are probably not your immigration lawyer just yet. I believe immigration cases are like fingerprints – no two are exactly alike. Permanent residence is usually based on an employment or family category, and depending on the category, the processing times will vary greatly. If your employer filed for you, the case may or may not have required a labor certification. If filed before March 2005, labor certifications were subject to a backlog that was only cleared in 2007. Then, the employer would have had to file an immigrant petition (I-140) for your husband, which would have a priority date assigned to it. The priority date is the date of filing the immigrant petition or the labor certification, if one is required. Your permanent residence cannot be approved until the priority date is current. For example, employment based 3rd category’s priority date for December 2009 is May 1, 2001 for India and June 2002 for all other countries (except Mexico, China and the Philippines). Priority dates are not the only reason for immigration delays. USCIS is short of staff and resources are allocated unevenly. This means that some cases are processed much faster than others. Your friend may have married a US Citizen. Sometimes those cases are processed quickly. He could also be confused and have been referring to his employment authorization document, not her “green card”.
The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances.
Edward Boreth is an immigration attorney who has practiced law for 14 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.
– Edward Boreth