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.

Can I attend school/classes while on H-1B1 status?

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 a few times by H-1B1 visa holders on whether they can attend school/classes while working in the U.S. on H-1B1 status.  

The answer to this question is: Yes, provided that attending school/classes is merely incidental to your primary purpose of being in the U.S. (i.e. working for your H-1B1 employer).

This means that: 

(1) You must still abide by the rules of your current status.  In other words, you must still continue to work for your H-1B1 employer consistent with the terms under your H-1B1 visa application or petition.  A simple way of remembering this rule can be expressed as follows: your H-1B1 employment should not be "compromised" in any way by your studies.

(2) You cannot extend your stay in the U.S. for the purpose of completing your course of studies.  If you wish to extend your stay in the U.S., it should be for the purpose of continuing your H-1B1 employment with your employer. 

A quintessential example is where an individual in the U.S. on H-1B1 status decides to take night and/or weekend classes without affecting his/her normal working schedule and employment terms with respect to the H-1B1 employer.  This is permitted because the classes are incidental to his/her primary purpose of working for the H-1B1 employer.

For completeness, the U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program (SEVP) has a useful chart here on who may or may not study in the U.S. that covers the various nonimmigrant visa classifications.

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

Can an H-4 Spouse of H-1B1 Principal work in the U.S.?

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 a few times recently on whether an H-4 spouse of an H-1B1 (Singapore) principal is eligible to apply for an EAD (Employment Authorization Document or commonly known as a "work permit") to work in the U.S.

Unfortunately, the answer is: No.  

An H-4 spouse of an H-1B1 (Singapore) principal is ineligible to apply for an EAD.

In contrast, an H-4 spouse of a regular H-1B principal is eligible to apply for an EAD to work only in the following very limited circumstances: 

(i) If the H-1B principal has an approved I-140 Immigrant Petition; or

(ii) If the H-1B principal has been granted H-1B status beyond the maximum six-year H-1B period of admission limitation under a law called "AC21". 

In short, it is either impossible (if you are an H-4 spouse of an H-1B1 principal) or uncommon (if you are an H-4 spouse of a regular H-1B principal) for an H-4 spouse to be able to work in the U.S.  

If you (the H-4 spouse) are also a Singaporean citizen, you might wish to consider going for an H-1B1 (Singapore) work visa yourself if you are offered a position with an employer who wishes to "sponsor" you (and provided the H-1B1 eligibility requirements are being met in your case).

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

 

The June 22, 2020 Presidential Proclamation (as Amended on June 29, 2020)

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.

On June 22, 2020, President Trump issued Presidential Proclamation 10052 (subsequently amended on June 29, 2020) "Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak" (the "Proclamation") impacting certain nonimmigrant visas.

Of note is whether this Proclamation (as amended) would encompass H-1B1 visas since the term "H-1B" was mentioned.  Thankfully, according to recent email correspondence from the U.S. Embassy in Singapore, the answer is "No."

Thus, as of the date of this blog post, the H-1B1 (Singapore) visa is not impacted by the Proclamation (as amended).  Many thanks to the helpful Singaporean who forwarded me the above-mentioned email from the U.S. Embassy.

Below is a summary of key provisions/restrictions in the Proclamation (as amended).


Summary

Effective June 24, 2020 and expiring December 31, 2020 (which may be extended as necessary), the Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

• H-1B visa and any foreign national accompanying or following to join them;
• H-2B visa and any foreign national accompanying or following to join them;
• J visa, to the extent the foreign national is participating as an intern, trainee, teacher, camp counselor, au pair, or in a summer work travel program, and any foreign national accompanying or following to join them; and
• L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if he/she:

• is outside the U.S. on the effective date of the Proclamation (June 24, 2020);
• does not have a nonimmigrant visa, of any of the classifications specified above and pursuant to which the individual is seeking entry, that is valid on the effective date of the Proclamation;
• does not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the U.S.

The Proclamation will not apply to the following individuals:

• Lawful permanent residents;
• Spouse or child of a U.S. citizen;
• Any individual seeking entry to provide temporary labor essential to the U.S. food supply chain; 
• Any individual whose entry would be in the "national interest" as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the "national interest" exemption, the Proclamation directs the Secretaries of State, Labor and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who: 

• are critical to the defense, law enforcement, diplomacy, or national security of the U.S.;
• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• are involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19; 
• are necessary to facilitate the immediate and continued economic recovery of the U.S. or are necessary to facilitate the immediate and continued economic recovery of the U.S.; or
• are children who would age out of eligibility for a visa because of this Proclamation or Proclamation 10014.       

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

Is my H-1B1 for 1 year or 18 months?

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.

In this blog post I will explain the difference between (1) H-1B1 visa validity duration, and (2) period of authorized H-1B1 admission, and how this helps you to "stretch" your H-1B1 visa usage toward the end of your first year on H-1B1 status.

You may have come across inconsistent information regarding a 1-year duration or 18-month duration.

Specifically, you may have noticed that the H-1B1 visa in your passport is valid for 18 months from the date it is issued.  Or, if you have never had an H-1B1 visa before, you may have also noticed this based on information provided by the U.S. Embassy in Singapore's website.

On the other hand, the U.S. Immigration and Nationality Act states that the period of admission for an H-1B1 is 1 year.  Or, for those of you who have entered on an H-1B1 visa before, you may have also noticed this based on your admission stamp or online I-94 record.  (Assuming the immigration officer carries out the inspection and admission process correctly, which is a story for another post).

The key to reconciling this difference is to understand the distinction between (1) visa validity duration and (2) period of authorized admission.

1.  Think of the H-1B1 visa inside your passport as your "entry ticket" into the U.S.  The validity of this H-1B1 visa/"entry ticket" is 18 months, as set by the U.S. Department of State.

2.  Each time you enter on a valid unexpired H-1B1 visa/"entry ticket", you will be admitted for 1 year.  This 1-year authorized period of admission is prescribed by the Immigration and Nationality Act.

As you can see, the visa validity duration (point no. 1 above) and authorized period of admission (point no. 2 above) are separate things.

This dichotomy is very useful when your first year on H-1B1 status is about to finish.  Recall that, although your H-1B1 authorized period of admission is for 1 year, your H-1B1 visa/"entry ticket" is valid for 18 months.  This means that, since your "entry ticket" is still valid for at least 6 more months, you can obtain an additional 1 year of H-1B1 status by leaving the U.S. and entering again close to the end of your first year on H-1B1 status, which effectively "stretches" your H-1B1 time.

Here is an example to illustrate how to "stretch" your H-1B1 visa usage when your first year is almost up:

1. Let's say you have an H-1B1 visa (issued on November 15, 2018, expires 18 months later on May 15, 2020) inside your passport after the Embassy approved it. 

2.  Next, let's say you enter the U.S. on H-1B1 on December 1, 2018.  The officer is supposed to admit you for 1 year of H-1B1 status.  Therefore, your admission stamp (or your electronic I-94 record.) expiration date should be November 30, 2019. 

3.  Before the 1 year is up, you leave the U.S. for a short trip on November 25, 2019 and you return to the U.S. on December 2, 2019.  At this time, your H-1B1 visa in your passport hasn't expired yet (in this example, the visa itself expires on May 15, 2020 in accordance with point 1 above), so the officer can admit you for another 1 year of H-1B1 status if your LCA and passport also do not expire by then.  Therefore, your new admission stamp (or "I-94" record) expiration date should be December 1, 2020. 

Additional things to note:

a. Remember that once your H-1B1 visa inside your passport has expired, you cannot re-enter again; you'll have to go and get a new H-1B1 visa/"entry ticket" in your passport.  

b. The strategy in the above example can be used as long as your existing H-1B1 LCA (Labor Condition Application) does not expire before the expiration of your admission period each time.  

c. Make sure your current passport does not expire early because the officer cannot let you in for a period longer than the expiration date of your passport.

As you can see from even this simple illustration, there are nuances and complexities involved in the H-1B1 process.  Thus, it is always beneficial to work with an experienced H-1B1 immigration attorney so that you and your U.S. employer can utilize the H-1B1 visa correctly and to its fullest extent.

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

H-1B1 (Singapore) FAQs

Welcome to this blog.

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.

In this first blog post I am providing a set of FAQs to introduce the H-1B1 visa to U.S. employers and prospective Singaporean employees.  I will elaborate on specific issues in subsequent blog posts.

H-1B1 FAQs

A.  What is the Duration?

An employee under an H-1B1 visa is admitted for a duration of 1 year, renewable indefinitely. 

Some of you may notice that your H-1B1 visas inside your passport are valid for 18 months after issuance. I will explain the difference between (1) visa validity duration which is 18 months, and (2) the authorized period of admission which is 1 year, in a subsequent blog post. 

B.  What are the Procedures for Obtaining H-1B1 Status?

There are two ways of obtaining H-1B1 status.

1.  After the Labor Condition Application* is certified by the Department of Labor, the H-1B1 employee may directly apply for an H-1B1 visa at a U.S. Embassy/Consulate abroad.  No petition needs to be filed before the USCIS.

OR

2.  After the Labor Condition Application* is certified by the Department of Labor, the Employer may file a petition before the USCIS.  Unlike a normal H-1B petition, there is no premium processing available for H-1B1 petitions. 

In my opinion, the first method (obtaining the H-1B1 visa directly through consular processing abroad) is highly recommended.  I will elaborate why via a subsequent blog post.



*The Labor Condition Application (or "LCA") is a form to be e-filed by the employer on behalf of certain nonimmigrant employees (including H-1B1 employees) that attests to employment information such as the wages and place of employment.  In November 2018, the Department of Labor released a new edition of this LCA form.  

C.  Is the H-1B1 Status "Transferable"?

The H-1B1 status is not "transferable."  This is because H-1B portability provisions do not apply to H-1B1 cases. 

This means that an H-1B1 employee (who was previously on H-1B1 status with another company) cannot join the Employer until or after the new H-1B1 status is obtained in one of the two ways described above. 

This is different from a normal H-1B transfer case where the employee (who was previously on H-1B status with another company) is permitted to start working at the Employer once the Employer's H-1B transfer petition is filed with USCIS. 

Thus, the normal procedures used for H-1B transfer cases do not apply to an H-1B1 case. 

D.  Is the H-1B1 Visa "Dual Intent"?

No, the H-1B1 visa is not "Dual Intent."  

This means that, if an H-1B1 applicant is interviewed at a U.S. Embassy or Consulate, he/she must generally show that he/she does not intend to immigrate to the U.S. (by, for example, showing ties to his/her home country).  

E.  Is the H-1B1 Employee subject to a Lottery?

No.  This is because the H-1B1 quota is never reached.  This has two implications:

First, an H-1B1 petition (for new employment) can be filed at any time during the year.  This is unlike a normal H-1B case where a petition for a new employee trying to obtain H-1B status for the first time has to be filed in early April. 

Second, the H-1B1 employee can start working on H-1B1 status at any time of the year.  This is unlike a normal H-1B case where an employee who is starting on H-1B status for the first time has to begin on October 1.

F.  Comparison Chart

Some U.S. employers may have sponsored regular H-1B employees in the past, but most are unfamiliar with the H-1B1 for Singaporeans. 

The comparison chart below summarizes the difference(s) between H-1B1 cases and H-1B Cap Cases.

COMPARISON CHART

	H-1B1 Cases	H-1B Cap Cases
Duration	1 year	3 years
Extensions/Renewals	Renewable indefinitely**	In general, may be extended for another 3 years (for a maximum period of 6 years)
Can the employee obtain the visa through Consular Processing without the need for an approved petition from the USCIS?	Yes	No.  An approved petition by the USCIS is required before the employee can obtain the visa
Can the employer file a petition to the USCIS on behalf of the employee?	Yes.    Note: Employer does not have to pay USCIS fees if it chooses to use consular processing abroad instead of filing a USCIS petition	Yes.
Subject to Lottery?	No	Yes
When to Apply / File?	Can apply for a visa / file the petition at any time of the year (because quota is never reached)	Must file petition during the H-1B filing acceptance period prescribed by USCIS, typically in early April.
When can the Employee Start Work on the Visa Status?	At any time after visa status is obtained	The earliest start date for each fiscal year is October 1 (for first-time H-1B status)
“Transferable”/Portable?	No	Yes
Dual Intent?	No	Yes

** There are different options available on renewals and extensions.  Because of the complex nature of some of the procedures behind these options, it is best to speak with an immigration attorney with experience in H-1B1 cases.   


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