Immigration Law MonthlyApril 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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