Protecting The Green Card When Taking Extended Trips From The U. S.; Entitlement To 10 Day Or 60 Day Grace Periods For Nonimmigrant Workers; Public Charge Danger Signals

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1. Protecting the green card.

After obtaining the green card, permanent residents many times leave the U. S. for extended periods of time, placing their green cards in jeopardy during the inspection process when reentering the country. What is there to do except to hang back or try to somehow get into the line of the Customs and Border Protection (CBP) officer that one thinks will afford the most favorable inspection? The general rules are that a permanent resident should be maintaining a main domicile in the U. S., which generally means over 6 months of each year; that trips of over 180 days may subject the individual to harder inspection as an alien “seeking admission”; and that frequent trips of extended duration even if not over 180 days may still cause challenge to the right to keep the green card.

What can one generally expect from CBP where extended absences are concerned? Usually the first step will be a warning and a notation in the passport of the person’s extended absence. The applicant may be instructed to apply for a reentry permit. The reentry permit allows a permanent resident to be outside the U. S. for up to but not including 2 years and is a favorable factor for entry as the individual has in effect informed DHS of his or her plan to take extended trip(s) outside the U. S. However, it is not a guarantee for reentry. So in what other ways can a green card holder protect his or her permanent resident status? If the absence or absences was to take care of someone in ill health, perhaps a statement from the treating physician, hospital records or test reports along with proof of relationship would be helpful. Although some CBP officers have said tax returns are not particularly persuasive, it would not hurt to have proof of the payment of U. S. taxes so long as the person is not taking an income exemption for income earned overseas because of having declared himself or herself a nonresident for the year.

In a deferred inspection or before an immigration court, other items that might be helpful could be proof of real and personal property owned in the U. S., job letters, proof of pay, proof of family members in the U. S. and their maintenance of domicile here, bank books and banking statements, use of U. S. credit cards, ownership of U. S. stocks, insurance policies, membership in associations, clubs, and organizations, evidence of payment of long-term debt over a period of time, e.g. mortgage and automobile payments, library cards, state driver’s licenses or state identity cards, etc.

This is a new age in which immigration officials have become emboldened by the Administration to take adverse actions against immigrants, legal or otherwise. It behooves all permanent residents who travel outside the United States for extended periods of time to be more cautious and be prepared to meet a challenge upon arrival.

2. Is the nonimmigrant worker entitled to a grace period of 10 days or 60 days?

In the final rule of November 18, 2016, “Retention of the EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers,” U.S.C.I.S. expanded application of the 10 day grace period given at the end of the expiration of nonimmigrant working status to nonimmigrant working classes E-1 (Treaty trader), E-2 (Treaty investor), E-3 (Australian specialty occupation), L-1 (intracompany transferee), and TN (NAFTA or soon to be CUSMA). H-1B (specialty occupation), O-1 (extraordinary aliens) and P (performers, athletes and entertainers) categories were already covered. Significantly U.S.C.I.S. clarified that the 10 day period could be used to apply for purposes of extension of status or change of status.

The same rule also allowed a 60 day grace period for each authorized validity period to allow individuals who had left or been dismissed from their authorized work to find new work if in categories E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN. The 60 day grace period can only be used once within each petition’s validity.

It is clear that the purposes of the two grace periods are different – one to allow 10 days at the end of the authorized period of stay and the other to protect nonimmigrant workers caught in unsuitable situations of employment. Yet can the two meet and be combined to give more than 60 days? The final rule allowed for that possibility in a situation wherein the applicant leaves or is dismissed during the last 60 days of the validity period of the authorized stay, at which point U.S.C.I.S. might consider the applicant to have maintained status for up to 60 days immediately preceding the expiration of the validity period (since the applicant is within the 60 day grace period), and the applicant might also use the 10 day grace period after the validity period ends.

So how would that work out in practice? Would the rule allow an individual in H-1B status whose period of validity had just ended and is in the 10 day grace period another 60 days on the basis that the employer had not decided to let him or her go and was contemplating an extension and only gave the decision to not extend the visa status during the 10 day grace period? I think not. However, it might certainly apply to an individual who is dismissed with 40 days left to go on the petition validity, and because the 60 day grace period would cover the ending date of the H-1B petition and be considered the new ending date (albeit without work authorization), the 10 day grace period would then be appended to the end of the 60 day grace period to afford more time for the individual to depart the U. S., change or extend status.

3. Public charge danger signals.

Current prohibited public benefits for persons applying for permanent residence are SSI, cash assistance from the Temporary Assistance for Needy Families (TANF) program, food stamps, State Child Health Insurance Program (SCHIP) and public assistance including Medicaid used for long-term care such as in a nursing home or mental health institution. The proposed rule of October 10, 2018, “Inadmissibility on Public Charge Grounds,” would also include Medicare part D low income subsidies, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing. The Trump administration is also moving to draft a regulation to deport green card holders who use government assistance within 5 years of admission, as per a Reuters report on May 3, 2019. According to Reuters, the public benefits would include SSI, the food stamp program, Section 8 housing vouchers, many Medicaid benefits, and TANF.

The October 10, 2018, proposal garnered over 210,000 comments in the 60 day comment period. Yet the number of comments does not mean that it will not become law although the Administration can expect much litigation in the courts. What should people do at this point? The best advice is probably to stay on the public benefit(s) if you need it, and get off of it if you only consider it a “freebie” of the U. S. government. The proposed rule has a 60 day exit ramp after the rule’s finalization within which participants can disenroll from the program(s). In addition, persons who are adjusting status to permanent residence or going overseas to apply for immigrant visas would not be penalized for using benefits which were not previously targeted by the new rule before the effective date. It can be assumed that any proposed rule for green card holders would contain the same or similar 60 day exit ramp.

In our next article, we will discuss the recent Trump Administration moves against immigration, DHS (including U.S.C.I.S.) iron-doming itself, and another interesting topic(s).


About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

This article © 2019 Alan Lee, Esq.