Immigration Q & A January 2011

Author by Edward Boreth

As the winter brings cold fronts from Canada, I am reminded that many South Asian and even Caribbean immigrants first immigrate to Canada, and then after many years seek the warmer climate of the United States. In this issue, I will address questions related to Canada.

I am a Canadian citizen, but I have lived in the United States for 3 years. My daughter has become a US citizen and now I would like to apply for my green card. Can I apply here or do I need to go back to Canada? The USCIS website says that I need an I-94 card to prove legal of entry into the U.S., but I do not have one. I entered by car and the border officer did not stamp my passport and did not give me any card.

The rules for Canadian citizens are a little different than for other immigrants. As a Canadian citizen, you can apply for adjustment of status here in the U.S. if the family member petitioning you is your spouse or child over 21. You still need proof of legal entry, but because most Canadian visitors are not issued I-94 cards, USCIS has agreed to accept secondary evidence, such as airplane or bus tickets, or sometimes a detailed affidavit.

I am a citizen of Pakistan. I lived in Canada for years, but never acquired Canadian citizenship. I entered the U.S. eight years ago. I have married a US citizen and would now like to apply for my green card. Can I do it here?
The answer hinges on how exactly you entered the United States. If you are not a citizen of Canada, you would have generally needed a visa to enter the U.S. If you entered with a visa, you would have a stamp in your passport showing entry and a form I-94. If you did not get your passport stamped, it may still be possible for you to adjust status in the U.S., but the situation gets complicated and the result may depend on the smallest fact. Talk to an immigration attorney about the exact circumstance of your entry to the U.S.

I am a Canadian citizen and green card holder in the U.S. I have had my green card for five years and am ready to apply for my U.S. citizenship. The citizenship application asks me to list all my trips outside the United States. I have gone to Canada numerous times, both on business and to visit family. Each time I travel, my passport is not stamped. I cannot remember all the travel dates, but I have never stayed in Canada more that 2 weeks. What do I do?
The main concern regarding travel dates on the naturalization application is the total amount of time that you were outside the Unites States and also any trips over 6 months. In any case, you have to list ALL your trips, but if your total travel time is significantly less than the time spent in the US, it is not so important to have the exact dates. You do need to write how many days you were outside the US for each trip, but if you are off by a few days, it should not make a difference.

I live in Canada, but I have been offered employment in the United States. I am a Canadian citizen. What is the process by which I can work legally in the U.S.?
In addition to the H-1B and L-1 visas, Canadian citizens may obtain TN visas. If your profession is listed on the NAFTA (North American Free Trade Agreement) list, and you have the required educational credentials for your profession, your U.S. employer may ask the Department of Homeland Security to admit you in TN status to be employed by the US employer. The process does not require a petition to be filed with USCIS and is relatively fast. The professions list features professions such as accountant, architect, computer systems analyst, engineer, management consultant, pharmacist, and many others.

I am a permanent resident. I petitioned for my wife in July 2010. In September 2010, my petition was approved and my lawyer told me I would have about a 3 months wait before my wife could come to the US. I have sent the documents to the National Visa Center. Now my lawyer tells me I might have to wait another 2 or 3 years before my wife can come to the U.S. How did it go from 3 months to 2 years?
This has to do with priority dates. Most family based categories of immigrant visas have a quota – in other words, there is a limit to how may people can get green cards each year. Spouses of permanent residents are limited to about 80,000 green cards per year. Generally more people apply than there green cards available. This creates a backlog or a waiting list. The priority date is the date you filed the petition and it is the manner by which the government tracks how many petitions are processed each year.
In the last 10 years, the waiting list had grown to about 4 to 5 years. Based on this many people preferred to file for their spouses after they became US citizens, because the wait was about the same. Since less people filed petitions in the permanent resident category, the waiting list shrank. In September, the wait was at an all time low of only 3 months. In other words, people who filed their petitions in June were eligible for visas in September. As more people saw that the wait had become so short, more permanent residents filed for their spouses. As soon as more people filed, the wait became longer. This is why as of January 2011, visas will be issued to those spouses of permanent resident who filed in January of 2008 or earlier.

My mother is a permanent resident since 2004. She lives with me, but only spends about 3 or 4 months a year here. The rest of the time she spends in Africa with my sister, or in India with my brother. Can my mother apply for U.S. citizenship or can she lose her green card?
To get U.S. citizenship, one must have more than 30 months physical presence in the U.S. within the last 60 months. Additionally, any absence of more than 6 month raises a rebuttable presumption that you have abandoned your 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 from the United States 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.

Your mother may prevent losing her permanent residence by applying for a reentry permit. This permit 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 not preserve her residence for citizenship purposes, though.

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. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 16 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.