Chang & Boos, Attorneys-at-Law Creating - Transparent Borders  



Immigration Law Monthly

April 2000

Written by Henry J. Chang

I am currently employed in the United States under L-1A status.  My company is now experiencing a period of great uncertainty and I would like to apply for permanent status before any significant changes take place. To complicate things even further, I am involved in a lesbian relationship with an American citizen.  I know that in Canada (where I have citizenship), certain compassionate applications are considered for granting immigrant status to gay/lesbian spouses. Are there similar changes pending in the United States?

There is no recognition of same-sex relationships for the purposes of U.S. immigration and such recognition is unlikely in the future.  Your best option is to have your employer seek lawful permanent residence on your behalf as a multinational manager/executive under the first employment-based preference.  Further information on this option appearshere

My girlfriend is a U.S. citizen currently residing in the U.S. and I am a Canadian citizen living in Canada. We expect to be married within the year. We need to know what needs to be done (or if it is possible) for me to live in the U.S. & still work in Canada. This would require me to travel across the border every day. I am employed as an IT manager with a Canadian company & want to be able to continue my employment.

I am assuming that you will be seeking lawful permanent residence as the spouse of a U.S. citizen under the immediate relative category, so I will not address the issue of how you will acquire such status. I will instead address the issue of maintaining your lawful permanent residence status once you have it. 

Although there is a way to maintain lawful permanent residence if you reside in contiguous territory (i.e. Canada) and commute to the United States on a permanent and regular basis (known as Alien Commuter Status), there is no special provision permitting you to reside in the United States and commuting to Canada to work.  Nevertheless, you should still be able to do this since you will have enough ties to the United States to establish that you have not abandoned your lawful permanent residence in the United States. 

In order to be re-admitted as a lawful permanent resident, you must establish that your absence abroad is temporary.  As the Board of Immigration Appeals concluded in Matter of Huang, 19 I. & N. Dec. 749, 7 Immig. Rptr. B1-17 (BIA 1988), your subjective intention is the controlling factor.  Factors such as the purpose for departing, a finite termination date for your trip abroad, and your place of employment or domicile are relevant. 

In the present case, you would have a U.S. citizen spouse and would be residing with her in the United States.  You would only be travelling to Canada for employment.  Each trip would be brief and would have a finite duration.  Although the fact that you are employed in Canada may in some cases suggest that you have abandoned your lawful permanent residence in the United States, you should be able to document sufficient ties to the United States to ensure that your status is not challenged. 

In Matter of Huang, the BIA indicated that, in exclusion cases where the alien has a colorable claim to returning resident status, the burden of proof is on the Immigration and Naturalization Service ("INS") to show by clear, unequivocal, and convincing evidence that he or she should be deprived of his status as a lawful permanent resident.  This is a fairly high burden on the part of the INS.  Consequently, it is unlikely that they will challenge your intention to return to your domicile in the United States under such circumstances. 

I am an unmarried Canadian citizen (30 years old), and my mother is a permanent resident of the United
States.  In 1996, she filed a petition for my immigration to the U.S. (Form I-130). Her petition was approved, and I am now waiting for visa availability.  Next week, my mother will receive her U.S. citizenship. Can she use her citizenship to reduce my waiting period?  Does she have to file a new petition (I-130) in order to reduce my waiting or can she simply notify INS of her new status?

Yes, her new citizenship can reduce your visa backlog.  Although you do not state what family-based preference you claimed under, it is quite likely that your mother filed for you as an unmarried adult son of a lawful permanent resident under the 2b preference.  According to 8 CFR §204.2(i)(3), effective upon the date of the petitioner's naturalization, such a petition will automatically be regarded as having been approved under the 1st preference (unmarried sons and daughters of U.S. citizens) and your previous priority date will continue to be valid.  There is no need to file a new petition.  However, you will have to notify the INS of your mother's change in status, and providing a copy of her naturalization certificate. 

I have conflicting advice on green cards that pre-date the l968 Imm. Act.  My l963 card was surrendered voluntarily at the border rather than risk a 2, 5, or l0 year ban from the United States.  The RCMP passport specialist says that I should have been grandfathered in.  I then remembered that many years ago the date l968 was erroneously on the card.  My mother is a U.S. citizen and and my brother is still a green card holder.  What are my choices? For the last ten years I have been active in the United States doing volunteer work, but haven't filed income tax or claimed residency.  I also have no criminal record.

The old green cards (Form I-151) were supposed to be replaced with the newer type (Form I-551).  Effective August 19, 1996, the old Form I-151 was removed from the list of documents that may be accepted as proof of lawful permanent residence.  However, INS officers at ports of entry still had the discretion to admit aliens on that one occasion and provide them with instructions on how to obtain Form I-551.  The "RCMP passport specialist" you spoke with was probably referring to this.  Unfortunately, this has nothing to do with your problem. 

It appears as though you were accused of abandoning your lawful permanent residence status; this is very different from the above issue.  Unfortunately, I have very little information regarding the circumstances leading to the surrender of your Form I-151.  I suggest that you read my article on abandonment of lawful permanent residence.  I can tell you that, if you have not actually resided in the United States during the past year (you said you never "claimed residency"), you probably have abandoned your status and the INS was right in challenging your status. 



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