Month: April 2011

Dear Atty. Lou,

I just wanted to inquire about departure and arrival dates law.  My mother-in-law was granted a permanent residence visa about 3 years ago and she only stayed here maybe a total of 6 – 7 months. Is there any chance that her green card would be cancelled or revoked?  She backdated her passport once, paid about $50 in the Philippines and was able to re-enter the US, isn’t it this an act of forgery?  Also just recently because she stayed in the Philippines longer than allowed. I learned that she purposely lost her passport and green card and now she received a new one and she was saying that that’s her reason why she wasn’t able to come back on time.  My question is, can it be cancelled because of the primary reason of her not fulfilling the real purpose of being a permanent resident and that is being a permanent resident which means you have to stay, work and live here?  It seems that it’s being used as a purpose of visiting only like one who is on a tourist visa- stay here for 2-3 weeks then come back in Philippines for 10-11 months.  She was also saying that there’s no record of departure because they do not stamp the passport here in the US when you leave only when you arrive basically, is this true?

I’ll appreciate your help and I just wanted to provide solid information to my wife because she is concerned that her mom will eventually lose her green card in a matter of time.  It looks like she’s circumventing the US law thinking she can get away with it every time.

Sonny

Dear Sonny,

You raise a very usual but valid concerned in regards to your mother in law’s green card. The US immigration law provides for the issuance of green card to those individuals who are permanent residence either through petition by a family member or through employment. The process of obtaining green card can be simple or very complicated depending on the basis of the application. It can also vary in time from less than a year to twenty- five years depending on the nature of the petition.

For those who are in possession of their green cards, they should use it for purposes it was issued, that is, to work and stay in the United States and to make US their permanent place of abode. In the case of your mother in law, it looks like she just wants to have in her possession the green card that was issued to her. She does not appear to have the intention of staying in the US permanently. Since her intention is just to keep her green card and not use it to live and work here, there is a very strong probability that the Customs and Border Protection (CBP) officer will most recommend the revocation of her green card upon her entry in the US. Most likely, she will be charged under INA § 212(a)(7)(A)(i)(I) after she is found to have abandoned her status.

The most obvious indicator of abandonment is a prolonged absence outside the United States exceeding one year without special authorization for re-entry. The CBP Inspector’s Field Manual (IFM) lists several other “indicators of possible abandonment of permanent resident status” including: (1) Employment abroad;  (2) Immediate family members who are not permanent residents; (3) Arrival on a charter flight where most passengers are non-residents with return passage; (4)Lack of a fixed address in the United States; and (5)failing to file U.S. income tax returns while living outside the United States or self-declaring to be a “non-resident” on U.S. tax returns.

Backdating of departure-arrival stamps on the passport is unlawful. You are right that she may be criminally liable for doing this type of action. The database of the US Department of Homeland Security is now very extensive and sophisticated that arrival and departure information may easily be verified through their programs. You may want to warn your mother in law about this and to desist from engaging in such an unlawful activity.

Atty. Lou

 (Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)

Dear Atty. Lou,

I am a software engineer for a US consulting company. My H1B visa reached its sixth year and will expire in June 2011. A labor certification was filed by my employer last year. This application for labor certification was audited by the Certifying Officer. After responding to the audit, the labor certification application was denied.

The reason for the denial of the petition is that my employer has no financial ability to pay the required wage as stated in the application for labor certification. My company has sufficient income in the past. But at the time the labor certification was filed, the company’s tax returns show a taxable income of only $10,000 and after deductions it shows a negative amount. This negative figure resulted in the findings by Department of Labor Certifying Officer that the company has no ability to pay the required wages and therefore denied our application.

My employer has always paid me the correct wages whenever I am assigned to different companies to work. I do not understand this finding of the Certifying Officer. What is now the effect of this denial of my labor certification? Will I still be allowed to extend my H1B?

S. Engineer

Dear S. Engineer,

It is a reality that companies in certain industries actually suffer from financial loses as a result of the downturn of the economy. While you mention that your wages are being appropriately paid, there are some specific legal requirements that must be met before an application for your labor certification is approved.

Your labor certification application is part of the immigrant visa process and that the petitioning employer must attest to certain conditions of employment which includes the fact that it has “enough funds available to pay the wage or salary offered the alien” as per 20 CFR § 656.10(c)(3). What this means is that the Department of Labor will determine whether there is enough money available to guarantee the foreign national’s salary.

Most of the time the documentation requested to show proof of ability to pay includes but are not limited to the following: state payroll tax documentation; bank statement for the current or latest profit and loss from employer’s accountant; federal income tax statements; listing of current employees and their job titles.

From such documentation, the Department of Labor will determine whether there is ability to pay. In your case, a negative figure after deductions on your employer’s tax return is not sufficient proof of ability to pay and the Certifying Officer was right in its denial of the application pursuant to the pertinent regulations.

Your professional working visa may not be extended to its 7th year unless there is a Petition for Immigrant Visa or I-140 that is filed. In this case, your petition for I-140 may not be filed without a labor certification. Your option is to determine whether it is possible to change your status to a different nonimmigrant category. This is a case to case basis depending on the particular circumstances of the H1B employee. Otherwise, you may want to consider returning to your home country for one year and file for another H1B should you have another US employer who will petition you again in the future.

I hope this information is helpful. Good luck.

Atty. Lou

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)