Three Misconceptions about the H-1B1 (Singapore) Visa to Avoid

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin. 

Similar to a common adage about our health, "prevention is better than cure", the same applies to navigating US immigration.   As such, in this blog post I am going to identify three misconceptions about the H-1B1 (Singapore) visa that you can try to avoid.

Misconception #1:  The expiry date of the H-1B1 visa in my passport tells me how long I can stay in the U.S.

Correction to the misconception:  The expiry date of the H-1B1 visa tells you the expiry date of when you can use it to enter the U.S. from abroad (To put it in a different way, the visa in your passport serves as the "entry ticket" only).  Instead, how long you are allowed to stay in the U.S. is determined by the CBP officer at the airport when you arrive and the record of the expiration date of your duration of stay is found in your online I-94 record that you can access here.*

[*Unfortunately, to compound matters, some CBP officers are not familiar with the H-1B1 Singapore visa classification and make the same mistake of confusing the visa expiry date with the duration of stay expiry date.  The correct approach is illustrated in the examples I have described in my previous blog post here.  Practical tip: If the CBP officer is confused and cannot find the H-1B1 Singapore visa classification in the computer system, mention "HSC" to the officer; HSC stands for H1B1 for Singaporeans or Chileans.]

Misconception #2:  My H-1B1 visa sponsored by my H-1B1 employer is transferable between / usable for multiple employers

Correction to the misconception:  Your H-1B1 visa is employer-specific.  For example, if you have been sponsored by Employer A for an H-1B1 visa and have been admitted into the U.S. on that H-1B1 visa, you CANNOT simply then work for Employer B instead of Employer A (or work for Employer B in addition to Employer A).

Misconception #3:  I need to change my H-1B1 status to regular H-1B status in order to be eligible to apply for a green card

Correction to the misconception:  This may sound surprising to some (due to the non-dual-intent nature of the H-1B1), but technically it is not necessary for you to be on regular H-1B status to be eligible to apply for a green card (although being on regular H-1B status could be helpful).  Having said that, you need to be very careful in terms of strategizing the timing of commencing the green card process (and the components thereof) when you are still on H-1B1 status to avoid immigration problems down the road:

-- In the context of seeking a marriage-based green card when a Singaporean is on H-1B1 status, I have provided my cautionary notes in my previous blog post here.  

-- In the context of seeking an employment-based green card** when a Singaporean is on H-1B1 status, the following components of an employment-based green card case will negatively affect any subsequent H-1B1 renewals: (a) an I-140 immigrant petition filed on behalf of that Singaporean by an employer sponsoring that Singaporean for a green card, (b) when that Singaporean files an I-485 adjustment of status application to obtain a green card.  Thus, if you are on H-1B1 status it is important to only commence (a) and (b) after your H-1B1 has been renewed.

*Special note:  In the context of an employment-based green card, if you are a Singaporean citizen but was BORN in China or India, then generally you would want to change to H-1B status.  This is generally due to "priority date" issues for people born in China or India that significantly protracts the amount of time for such people to be permitted to file the I-485 adjustment of status application.

In conclusion, just as it is helpful for your long-term physical health for you to go for a "checkup" with an experienced doctor to identify and prevent health problems, it is likewise helpful for your long-term immigration status for you to go for a "checkup" with an experienced immigration attorney to see if you can avoid any issues arising from any inadvertent misconceptions about US immigration law and procedures, especially with regard to lesser-utilized visa classifications like the H-1B1 (Singapore).

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.  The views expressed here are the author's own.

I am on H-1B1 status and thinking of marrying my U.S. citizen partner. Can I apply for a green card?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

If you are currently working in the U.S. on H-1B1 (Singapore) status and are thinking of getting married to an American citizen, you may be wondering if (and how) you can apply for a green card based on the marriage.

First off, it is possible to apply for a green card while you are in the U.S. on H-1B1 status – the process of seeking a green card while you are in the U.S. is called “adjustment of status.”

However, due to the non-dual-intent nature of the H-1B1, here are some precautions to note:

1. If you are applying for an H-1B1 visa at the US Embassy in Singapore (whether it is for the first or subsequent time) outside the U.S., do NOT get officially engaged or married yet.

This precaution stems from the fact and rationale that being a fiancé or spouse of a U.S. citizen significantly demonstrates the intent to take up permanent residence in the U.S., which jeopardizes your H-1B1 visa application before the Embassy.

2. If possible, try NOT to get married shortly after you have entered the U.S. on your H-1B1 visa.  Consider getting married after 90 days from your admission into the U.S. on your H-1B1 visa.

This precaution stems from the Department of State’s “90-day rule” which provides that when a person engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, that person is presumed (the presumption can be rebutted) to have made a willful misrepresentation in seeking a visa or admission to the U.S.

The Department of State’s 90-day rule is arguably not a hard-and-fast rule for adjustment of status cases because this rule pertains to the Department of State (which oversees the U.S. embassies and consulates abroad).  Adjustment of status, on the other hand, is processed by the USCIS, which is within the purview of the Department of Homeland Security (not the Department of State). The USCIS Policy Manual has since omitted references to the Department of State’s 90-day rule.

Nevertheless, the current version of the USCIS Policy Manual still states as follows: "Although conduct inconsistent with one’s nonimmigrant status and prior representations does not automatically mean there is a misrepresentation, such evidence permits a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, especially if the violation or conduct occurred shortly after the U.S. Department of State (DOS) visa interview or after admission." (Emphasis added) (USCIS Policy Manual, Vol. 8, Pt. J, Chap. 3, as of Sep 8, 2022).

Therefore, although the timing of the marriage to a U.S. citizen after entry into the U.S. on the H-1B1 visa has not been a major issue from my experience so far, there is still a risk that questions will be raised at your adjustment of status interview if you get married too soon upon your entry into the U.S. on an H-1B1 visa.  

3. If an H-1B1 employer decides to extend your H-1B1 status in the U.S. with the USCIS using an I-129 petition, you may wish to wait for the I-129 petition to be approved first before filing for adjustment of status.

This is to help ensure that the I-129 petition mentioned in the topic sentence above goes smoothly (The current processing time for the I-129 petition for an H-1B1 is approximately 2 to 4 months).

This precaution stems from instances of USCIS indicating an intent to deny and/or actually denying I-129 petitions on behalf of an H-1B1 employee when an adjustment of status for the H-1B1 employee was filed during the pendency of the I-129 petition (although there also have been I-129 petition approvals by USCIS in similar instances as well).  

As you can see from the above, if you are on H-1B1 status and thinking of marrying your U.S. citizen partner, it is possible to apply for adjustment of status to obtain a marriage-based green card.  Nevertheless, due to the nature of the H-1B1, it will probably serve you well to consult with an experienced immigration lawyer who has dealt with adjustment of status cases for H-1B1 visa holders to help you find a suitable strategy forward. 

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.  The views expressed here are the author's own.

How to get an earlier H-1B1 visa interview in Singapore and the "Interview Waiver" process

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

In this blog post I will provide suggestions on how to get an earlier H-1B1 visa interview appointment date at the US Embassy in Singapore and explain how the "Interview Waiver" process in Singapore works for eligible Singaporeans.

How to Get an Earlier H-1B1 Visa Interview Appointment Date in Singapore

When booking your H-1B1 visa interview appointment, you might initially obtain a later appointment date than desired.  There are 2 ways to address this (the 2nd way is recommended in most situations):

1.  Request an expedited appointment. To do this, you have to first book a normal appointment at the usual CGI Federal website here before the system will allow you to request an expedited appointment.  The qualifying criteria are quite narrow, as can be shown on the US Embassy in Singapore's website here, and results are hit-or-miss as they are under the discretion of the consular officer.  Thus, the 2nd way of obtaining an earlier H-1B1 visa appointment described below has been generally more effective for Singaporeans.  

2.  Logging in daily to check for earlier interview appointment slots (Recommended in most situations).  After booking a normal appointment slot at the usual CGI Federal website here, even for a later-than-desired date, you can then log into the CGI Federal website on a daily basis to see if earlier appointment slots open up.  You have 4 "free tries" to re-schedule your appointment.  From my experience and from other Singaporeans' experiences, checking in daily for earlier appointments have been generally more effective than asking for an expedited interview in Singapore. 

Having said that, some Singaporeans may be eligible for the "Interview Waiver" process these days (see below).

The "Interview Waiver" process in Singapore

Since 2021, the US Embassy in Singapore has been allowing eligible Singaporeans to go through the "Interview Waiver" process (also known as the "Drop-Box" service) when applying for an H-1B1 visa.  

This process involves dropping off your visa application documents at the Aramex office located near Chinatown MRT station without having to attend an in-person interview at the Embassy.  If successful, you will be notified to return to the Aramex office to collect your passport.

You may be deemed eligible for an Interview Waiver in Singapore for your H-1B1 visa application based on one of the following grounds: 

• Ground (a) If you have a previous visa of the same visa type that you wish to renew, and your prior visa is still valid or has expired within the last 48 months*; this is typical for Singaporeans seeking a renewal of an H-1B1 visa [Note: this interview waiver ground is available until further notice], or

[*This does not apply if your prior visa of the same type was granted when you had a different nationality]

• Ground (b) If you are seeking a visa type for the first time and you have previously traveled to the US using ESTA or any US visa before (Note: this interview waiver ground is available only for a limited time that expires at the end of 2023)**, or

[**This does not apply if your prior visa or prior ESTA, as the case may be, for your previous travel to the US, was granted when you had a different nationality]

• Ground (c) If you are seeking a visa type for the first time and you were previously issued a visa in any classification unless the only prior issued visa was a B visa, AND are applying within 48 months of your most recent visa's expiration date [Note: this interview waiver ground is effective January 1, 2024; it will be reviewed by the Department of State annually and is available until further notice, per the Department of State announcement here]***

[***This does not apply if your prior visa, as the case may be, was granted when you had a different nationality]

After you have paid your visa application fee and logged into the CGI Federal website, if you are deemed by the system to be eligible for the Interview Waiver process, there will be a notification to this effect that will appear on your computer screen.****

[****The system is not intelligent enough to distinguish between you (the principal H-1B1 applicant) and your H-4 dependent spouse or child (if applicable).  For instance, if you as the principal H-1B1 applicant have been deemed eligible for an Interview Waiver, but if your H-4 dependent spouse or child did not previously hold a US visa in their passport(s) as a Singapore citizen, they will likely be required by the Embassy to book an in-person interview for themselves eventually.]  

The Interview Waiver process generally takes about 4-11 days to complete (counting from the date that you drop off your documents at the Aramex office) on average.

Finally, the Interview Waiver process is a discretionary procedure.  In other words, consular officers may still require in-person interviews on a case-by-case basis or because of local conditions, and there may come a time in the future when this procedure will become unavailable, even for the Singaporeans who have been deemed eligible for it now (for example, this process was unavailable during the previous Trump Administration).

Disclaimer:  This blog is for informational purposes only and does not constitute legal advice.

H-1B1 versus O-1

 

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here.  Feel free to connect with me on Linkedin.

[Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice]

I have been asked a few times about the difference between the H-1B1 versus the O-1 visa.  This is understandable as some Singaporeans may find that they could be eligible for either one.

Having extensively done both types of cases, here is a brief summary to compare them. 

Visa classification	H-1B1 Singaporean in a Specialty Occupation	O-1A Individual with extraordinary ability in the sciences, education, business or athletics	O-1B Individual with extraordinary ability in the arts, or Individual with extraordinary achievement in the motion picture or tv industry
Summary of key criteria	Singaporean must possess a relevant bachelor’s degree or higher for the job offered, and the job offered normally requires a relevant bachelor’s degree or higher	Receipt of a major, internationally recognized award, e.g. Nobel Prize,           OR   At least 3 of the following: (1) Nationally or internationally recognized awards (2) Membership in associations which require outstanding achievements (3) Major media about the applicant (4) Judging the work of others in the field (5) Original contributions of major significance (6) Authorship of scholarly articles (7) Employed in a critical or essential capacity for distinguished organizations (8) Has commanded or will command a high salary	Been nominated for, or has been the recipient of, significant national or international awards, e.g. Academy Award, an Emmy, a Grammy, or a Director's Guild Award   OR   At least 3 of the following: (1) Has and will perform as a lead or starring participant in distinguished productions or events (2) Major media about the applicant (3) Has and will perform in a lead, starring or critical role for distinguished organizations (4) Record of major commercial or critically acclaimed successes (5) Recognition of the applicant’s achievements from experts (in the form of testimonial letters) (6) Has commanded or will command a high salary
Is an “Advisory Opinion” required?	Not Applicable.	Yes.   An “advisory opinion” from an appropriate peer group  (including a labor organization) vouching for the applicant’s extraordinary ability or achievement is required, unless an appropriate peer group does not exist.	Same as O-1A
Is an “Agent Petitioner” permitted?	Not Applicable.   The H-1B1 employer sponsoring you must be an actual employer	Yes.   An O-1 petitioner can be an actual employer or an “agent”.  An “agent” allows for multiple employers if the “agent” is authorized by them to act as their agent/representative for O-1 purposes.	Same as O-1A
Is a USCIS Petition Approval required?	No	Yes.  A USCIS petition approval notice (also known as the I-797 approval notice) is required for an O-1 visa application at the U.S. Embassy in Singapore.	Same as O-1A

 

From my experience, it often takes a significantly longer time to prepare for an O-1 case compared to an H-1B1 case.  This is not surprising given that more evidence is generally required to show extraordinary ability or achievement, and an O-1 visa application requires a USCIS petition approval (whereas an H-1B1 visa application does not). 

 

In practice, Singaporeans can experience a tougher time at the U.S. Embassy in Singapore for an O-1 compared to an H-1B1 because it is generally harder to convince the consular officer in Singapore of having met the O-1 “extraordinary ability/achievement” evidentiary criteria even though USCIS has already approved the O-1 petition.

 

Having said that, if you have accumulated a level of expertise and achievement in your field and can document it in accordance with the appropriate O-1A/O-1B criteria, you should not be deterred from considering O-1 as a possible option.

 

The above comparison is but a snapshot. Thus, it would benefit you to consult with an experienced immigration attorney to learn more about the pros and cons of each.

How do I "transfer" to a different H-1B1 employer?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here.  Feel free to connect with me on Linkedin.

Singaporeans working on H-1B1 status for their current company ("Company A") often ask the following question if they are thinking of joining another company ("Company B"):

How do I "transfer" to a different H-1B1 employer?

When a Singaporean on H-1B1 status working for Company A is thinking of joining Company B on H-1B1 status, there are two mechanisms available to choose from:

#1.  U.S. Embassy in Singapore (new H-1B1 visa application).  Depart the U.S. and visit the U.S. Embassy in Singapore  to apply for a new H-1B1 visa under Company B to be embossed in the passport.  You may start working for Company B on H-1B1 status upon being admitted into the U.S. on your new H-1B1 visa.

#2.  USCIS in the U.S. (H-1B1 change-of-employer petition).  Remain in the U.S. and have Company B timely file a change-of-employer petition (which should also contain a request for extension of H-1B1 status) with the USCIS.  There is no premium processing available to expedite the process, and you can only start working for Company B upon approval of the petition.  Also note that should you depart the U.S., you will still need to apply for a new H-1B1 visa under Company B (via #1 above) before returning to the U.S. [since you need a valid U.S. visa inside your passport in order to be admitted into the U.S. from overseas].

Cautionary note:  Regardless of #1 or #2, because your existing nonimmigrant H-1B1 status is tied to your existing employment, the termination (and its timing) of such employment has implications on your existing H-1B1 status.  Therefore, it is important for you to consult with an experienced H-1B1 immigration attorney before making a decision on when to resign from Company A. 

Let me summarize the above using the chart below.

	Mechanism #1. U.S. Embassy in Singapore	Mechanism #2. USCIS in the U.S.
Short Description	Depart the U.S. and visit the U.S. Embassy in Singapore  to apply for a new H-1B1 visa under Company B to be embossed in the passport.	Remain in the U.S. and have Company B timely file a change-of-employer petition (which should also contain a request for extension of H-1B1 status) with the USCIS.
Certified LCA from Company B Required?	Yes.	Yes.
USCIS Fees Payable?	No.	Applicable USCIS Fees as follows: USCIS I-129 Fee: $460 USCIS ACWIA Fee: $750 (if 25 or less employees) or $1500 (if more than 25 employees)   The above USCIS fees must be paid by the Company B.
MRV Fees Payable?	Yes. MRV Fee is $205 (previously $190) for the visa application at the Embassy.	Not applicable
Does it result in a valid H-1B1 visa inside the passport?	Yes.	No.  Therefore, if you subsequently depart the U.S., you are required to obtain a valid H-1B1 visa embossed in your passport through Mechanism #1 in order to enter the U.S. again.

Need to depart the U.S.?

Yes.

No.

When can the Singaporean start working for Company B on H-1B1 status?

The waiting time really depends on how swiftly you can obtain an available interview appointment slot in Singapore (which is normally a substantially shorter waiting time compared to USCIS processing times as described in the right column) The Singaporean can start working for Company B on H-1B1 status upon being admitted into the U.S. on the new H-1B1 visa.  (Please make sure start date of LCA is not later than the first day of work)

The Singaporean can start working for Company B on H-1B1 status only upon approval of the change-of-employer petition by USCIS.  (This is because regular H-1B portability rules do NOT apply to H-1B1 petitions) Note that there is no premium processing available to expedite the case.  (Current USCIS processing time is between 2 to 4 months if there is no Request for Evidence)

Again, since termination of your employment with Company A can have implications on your current H-1B1 status, you should consult with an experienced H-1B1 immigration attorney before you tender your resignation.

Disclaimer: This blog is for informational purposes only and does not constitute legal advice.

How can I "Convert" to H-1B1 from a Different Visa Classification?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here.  Feel free to connect with me on Linkedin.

I have been asked by Singaporeans who are already in the U.S. on valid status under a visa classification other than H-1B1 (examples: Singaporeans working on F-1 OPT status or on L-1 status, or staying in the U.S. on H-4 status as a spouse of an H-1B1 principal) on how to "convert" to H-1B1 status to work for an H-1B1 employer.   

There are two possible processes to achieve that end: 

(1) Consular Processing at the US Embassy in Singapore, or 

(2) Change of Status Petition with the USCIS in the U.S.

I summarize and compare these two processes in the table below.

(Updated as of March 2021 which takes into account the mandatory 2-week COVID-related quarantine period in Singapore).

	Consular Processing at US Embassy in Singapore for H-1B1	Change of Status Petition with USCIS for H-1B1
Step 1:  LCA	Certified LCA required   Timeframe: Approx. 1 week	Certified LCA required   Timeframe: Approx. 1 week
Step 2:  Consular Processing or USCIS Petition	Consular Processing   Timeframe:  Approx. 2 weeks to get the interview appointment.  You will find out if the visa application is approved at the interview itself   *Please also factor in the mandatory 2-week COVID quarantine period.  In other words, please ensure that your visa interview falls after that.	USCIS Petition for Change of Status   Timeframe: 2.5 to 4.5 months, and provided there is no additional request for evidence from USCIS   USCIS Premium Processing (for the purpose of expediting the case) is not available for H-1B1 Singapore cases with USCIS
USCIS Fees Payable?	No	Yes.  Applicable USCIS Fees below: USCIS I-129 Fee: $460 USCIS ACWIA Fee: $750 (if 25 or less employees) or $1500 (if more than 25 employees)   The above USCIS fees must be paid by the Employer.
MRV Fees Payable?	Yes.    MRV Fee is $190 for the visa application at the Embassy.    This is paid directly by you from a SAM Machine, SAM mobile app or Post Office in Singapore.	No.
Additional Remarks	A USCIS Petition is NOT required for H-1B1 visa applications at the US Embassy.  See 9 Foreign Affairs Manual 402.10-5(D).	Does not result in a valid H-1B1 visa inside the passport.  If you subsequently depart the U.S., you are required to obtain a valid H-1B1 visa embossed in your passport in order to enter the U.S. again.

Disclaimer: This blog is for informational purposes only and does not constitute legal advice.

For Singaporean Green Card Holders: How Long can I be Away from the U.S.?

I am a Singaporean U.S. immigration attorney based in Los Angeles.  My California State Bar record can be found here.  Feel free to connect with me on Linkedin. 

I normally write about H-1B1 visas for Singaporeans.  However, due to multiple inquiries, I am writing this blog post for Singaporean green card holders to address the question: As a Green Card Holder, How Long Can I be Away from the U.S.?

The answer to this question essentially depends on whether the CBP officer at your port of entry (typically the airport) deems whether you have abandoned your permanent residence or not.   

As a matter of practice, CBP typically uses the time period that you were continuously absent from the U.S. as a guide.  It is only a "guide" because there are other factors that go toward the determination of whether there has been abandonment of permanent residence or not.  

Below are the time periods broken up into three sections (A, B and C) for you to keep in mind.  

A.  Abroad for 6 Months or Less*

If you have been continuously abroad for 6 months or less, the CBP would typically not give you a hard time upon your return to the U.S.  

But there is a greater risk of scrutiny for your future returns if you engage in a continuous and repeated pattern of returning to the U.S. after slightly less than 6 months abroad just to remain in the U.S. for a few days before leaving again.  If CBP exercises greater scrutiny, a CBP officer may issue you a warning and annotate your admission stamp with the words "Advised" (of the impact on your residency if you are away for too long) or words with a similar effect.   

*Many green card holders and sometimes CBP as a practical matter seem to have informally adopted the standards for determining "disruption" of continuous residence for naturalization purposes even though "disruption" (or "break") in continuous residence is a separate concept from "abandonment" of permanent residence.  I suspect the reason why many green card holders mention a 6-month time frame is because they are concerned about "disrupting" their continuous residence for naturalization purposes.  Although many Singaporeans do not appear to be interested in naturalization, you can use the 6-month time frame as an informal guide. 

B.  Abroad for More than 6 Months but less than 1 Year**

If you have been continuously abroad for more than 6 months but less than 1 year, there is a greater risk of scrutiny since you have been away from the U.S. longer than in Section A. above, but CBP should probably still admit you absent other negative factors.

Since there is likely greater scrutiny here, there is a chance you will have to show additional evidence of your ties to the U.S., and you might also be given a warning and an "Advised" annotation as described above.  

**As noted above, there appears to have been an informal conflation of standards for determining "disruption" of continuous residence for naturalization purposes and "abandonment" of permanent residence.  In the context of naturalization, this time frame is used by the government to raise a rebuttable presumption that there has been a "disruption" of continuous residence.  In the context of determining "abandonment" of permanent residence, since this is a longer time frame than in Section A. above, CBP may consider that as an objective factor against you unless you have other positive factors in your situation (See Section D. below for other factors such as family ties, property ownership etc.). 

C.  Abroad for 1 Year or More

It will be a problem for you if you have been abroad continuously for 1 year or more.

This is mainly because the federal DHS regulations have indicated that to be admitted into the U.S. as a lawful permanent residence using an unexpired green card, it is only proper to present that green card if you were temporarily absent from the U.S. for less than 1 year.  See 8 CFR 211.1(a)(2) ("... a lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States, shall present ... [a] valid, unexpired ... Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year")

There are two ways to overcome this problem:

Re-entry Permit (Preemptive Measure):  Prior to leaving the U.S. in the first place, consider applying for a Re-entry Permit with USCIS.  The Re-entry permit is typically valid for 2 years.  Although you do not necessarily have to be in the U.S. when the Re-entry permit is approved, you must file the application for it before you depart the U.S.

SB1 Returning Resident Visa:  If you have already departed the U.S. for 1 year or longer but did not apply for a Re-entry Permit, consider applying for an SB1 Returning Resident Visa to be embossed in your passport at the U.S. Embassy in Singapore in accordance with DOS requirements. 

If you are unable to, or choose not to, obtain a Re-entry Permit or SB1 Returning Resident Visa, there are several possible outcomes at the airport with the CBP:

Possible Outcome #1: CBP Admits You.  The CBP officer may in his/her discretion simply admit you, perhaps with a warning and an "Advised" annotation to boot.   

Possible Outcome #2: CBP Admits You after Filing of Form I-193.  The CBP officer may ask you to file Form I-193 Waiver of Passport And/or Visa with payment of a filing fee of $585.  Here, if CBP determines you have good cause for not having a "valid" green card that is used after absence of less than 1 year, you will be admitted.  If not, you may be faced with Possible Outcome #3 or #4 below.

Possible Outcome #3: CBP Asks if you wish to voluntarily relinquish your permanent residence.  The CBP officer may ask you if you wish to sign Form I-407 Record of Abandonment of Lawful Permanent Resident Status; if you decide to sign this form, CBP will then admit you as a visitor.  But you should not be forced to sign it if you do not want to.   

Possible Outcome #4: CBP Issues you a Notice to Appear.  The CBP officer may issue you a Notice to Appear for you to go before an immigration judge at immigration court to make your case as to why you did not abandon your permanent residence. 

At the airport, you may be asked to go into a separate room for "secondary inspection" if the CBP officer(s) require more time to make a decision.  If the CBP still cannot make a decision, they may parole you into the U.S. so that you can return later to their office for "deferred inspection" to allow them to make their decision at a later time. 

D.  Other factors

As I have mentioned above, the practical method used by CBP to make a determination on whether you have abandoned your permanent residence is looking at your time spent abroad.  But there are multiple other factors that would affect the determination of whether you have abandoned your permanent residence.  These include: 

Property ownership, Family ties, Employment/business affiliations, Purpose for departing the U.S., Overall period of time outside the U.S. versus being inside the U.S. 

E.  Conclusion

In conclusion, if you anticipate being away from the U.S. for a prolonged period of time (more than 6 months), I recommend you consider applying for a Re-entry Permit prior to your departure to minimize complications.  

End Note: Abbreviations

Before I end this blog post, you may have encountered some abbreviations mentioned above.  For clarity, here are brief definitions of each of them. 

DHS:  This stands for Department of Homeland Security.  DHS is the federal executive department that has purview over the CBP and USCIS below.

CBP:  This stands for Customs and Border Protection.  Immigration officers at ports of entry (such as airports) who make a determination on whether you may be admitted into the U.S. are CBP officers. 

USCIS: This stands for U.S. Citizenship and Immigration Services.  USCIS adjudicates most immigration applications that are filed in the U.S. 

DOS:  This stands for Department of State.  DOS is the federal executive department that has purview over U.S. embassies and consulates around the world. 

Disclaimer: This blog is for informational purposes only and does not constitute legal advice.