giving up GC - can I get an H1B later?

easyrider

Registered Users (C)
Hi all,
Here is my dilemma: I got my EB green card in April 2007 (I'm a physician, did my residency on H1B, then got a job which sponsored me for GC). Unfortunately, some unforseen family circumstances require me to leave the US and stay away for an extended period of time and I cannot predict how long it will be. So if I decide to give up my GC and leave the US and then decide to come back later on a H1B, provided I can find a job and an sponsoring employer, is this going to be a problem, given that I will have abandoned my PR status already? If I do get the H1B, will I be eligible to refile for employment-based green card once again?
Thank you very much in advance!
 
Hi all,
Here is my dilemma: I got my EB green card in April 2007 (I'm a physician, did my residency on H1B, then got a job which sponsored me for GC). Unfortunately, some unforseen family circumstances require me to leave the US and stay away for an extended period of time and I cannot predict how long it will be. So if I decide to give up my GC and leave the US and then decide to come back later on a H1B, provided I can find a job and an sponsoring employer, is this going to be a problem, given that I will have abandoned my PR status already? If I do get the H1B, will I be eligible to refile for employment-based green card once again?
Thank you very much in advance!

You should apply for and obtain a reentry permit before you leave. It is only valid for 2 years, but if your stay abroad ends up being less than 2 years, you don't have to go through the green card process again. If your stay abroad does exceed 2 years, you can apply at the embassy for a special immigrant returning resident visa (SB-1) if you can show that your extended stay was due to reasons beyond your control (your situation seems to fit the requirement). Again, you won't have to go through the whole green card process again.

There is a lot of information on the internet about reentry permits and returning resident visas, for instance:

http://travel.state.gov/visa/immigrants/info/info_1333.html
 
How long will you be away? A re-entry permit can allow you to stay away for up to 2 years (you still have to show ties to the US like filing tax returns as a US resident).

Having had a GC before shouldn't stop you from getting an H1B. The problem is with getting an H1B in the first place, with the quota finishing in a day and the USCIS having to hold a lottery to decide who gets a visa.
 
Thank you guys. I knew about the re-entry permit option but besides tax returns and bank/retirement accounts I would not have much else to show in terms of ties to the US (I plan to sell all property and my car before I leave). Besides that, another reason for wanting to return on an H1B is that I might marry a non US citizen in the meantime, and if I return as a LPR my wife won't be able to join me here on H1B or F1, or even visit, and it would be another 4 years unitil citizenship; but I thought I can easily bring her in on an H4, and then apply again for an EB GC right away. I don't worry that much about the H1B quotas, since I will be most likely applying to academic hospitals which are exempt from the cap, or at least used to be a few years ago.
Thanks again for your replies.
 
If you get your H-1B, your GC is terminated. If you are ready to give up your LPR, you can start your H-1B right now but do not have to wait.
 
thanks compiler, agian my question is - will I be elligible for H1B if I surrender my GC, and subsequently for a new employment based GC? Is this going to hurt my chances to get a second GC?
 
You no longer have an H1B that can be extended, so if you have already used up 6 years of H1B status, you will have to leave the US for a year (which you are planning to do anyway) to be eligible for a new H1B.
 
thanks compiler, agian my question is - will I be elligible for H1B if I surrender my GC, and subsequently for a new employment based GC? Is this going to hurt my chances to get a second GC?
I have already answered your question. You can apply for a new H-1B if the quota is available. After you get it and use it, your LPR is terminated.
 
I have already answered your question. You can apply for a new H-1B if the quota is available. After you get it and use it, your LPR is terminated.
This person isn't stopped by the quota because of his line of work, but will have to leave the US for a year to be eligible for a new H1B (unless less than 6 years were used on his prior H1B).
 
Yes you will be eligible for an H-1B visa as long as you meet the visa's requirements. You will not hurt your chances for a second GC down the road by giving up your current GC.

will I be elligible for H1B if I surrender my GC, and subsequently for a new employment based GC? Is this going to hurt my chances to get a second GC?
 
What proof of residence do they normally ask for when you are returning with a re-entry permit after, say, 1.5 years of absence? To me it does not make too much sense to maintain an apartment/house, or even a car, in the US when one plans to be absent for such a long time. Would receipts from storage facilities, tax returns and solid amounts of cash in the bank suffice? What if a had a job lined up already?
 
Jackolantern,
if I decide to take up work with a locum tenens company as an independent contractor doing temporary MD assignments and work in the US for 7 months a year (in two 3 to 4 months blocks every year) and spend the rest of the time abroad, is this going to affect my chances for naturalization further down the road provided I pay taxes as a resident, maintain address, bank accounts, DL/car etc.?
Thanks in advance,
 
You are eligible to get H1 even after you give up GC.
What is not clear in law is whether you are subject to quota or not. The law simply says those who were on H1 last 6 years will not be subject to quota. It did not say anything about former LPR nor cancelled H1, which leaves slim chance that you won't be subject to quota.

Getting H1 quota is very difficult nowaday. Talk to lawyers about quota issue.
 
Last edited by a moderator:
You are eligible to get H1 even after you give up GC.
What is not clear in law is whether you are subject to quota or not. The law simply says those who were on H1 last 6 years will not be subject to quota.
And more specifically, only those who have not used up 6 years of H1 status.
 
Jackolantern,
if I decide to take up work with a locum tenens company as an independent contractor doing temporary MD assignments and work in the US for 7 months a year (in two 3 to 4 months blocks every year) and spend the rest of the time abroad, is this going to affect my chances for naturalization further down the road provided I pay taxes as a resident, maintain address, bank accounts, DL/car etc.?
Thanks in advance,
Residence requirements are strict for naturalization, more strict than for maintaining the green card. To be reasonably safe you should ensure that you spend more days within the US than outside the US in every year. So 7 months outside would put you into the danger zone. Doing a total of 7 months once might be OK, but if there is a pattern of doing it year after year you're likely to be rejected for breaking continuous residence. If that happens you'll have to rebuild 4 years + 1 day of residence to become eligible for citizenship.
 
Last edited by a moderator:
Thanks Jack and GotPR!
I was on H1B until Jan 2007 and did not use up the entire 6 years. I had a more speciific question in my last post though.
Thanks again!
 
Easyrider -

I have not heard that people just keep an apartment vacant if they are going to be away for up to 4 years. Some people do 1 reentry, come back for a month and do another reentry.

I have a friend that just stored some personal stuff in the US like cooking pots in storage, had an address with a friend (just had mail going there), filed taxes on time, used US credit cards abroad, called his US friends, he might have only suspended his cell phone service etc. So those are simple things - not really big. Also even if you work abroad - you can ask the employer to put the clause that you are being hired on a temporary assignment. Keep docs why you need to be temporarily abroad.

It sounds to me that you are not leaving the US permanently since you want to come back. You are going for an extended trip which is what reentry permit is for. So your case seems like a case worth fighting for in terms of keeping the GC.

One thing is that if after 4 years you will want to abandon GC - you will always be able to do it. Abanoding GC will be an option that noone will be able to take away. But once you abandon GC it will be hard to get it back.

Disclaimer
---------
Don't take the advice seriously. I am a layman. The advice might be bogus.
 
I have not heard that people just keep an apartment vacant if they are going to be away for up to 4 years. Some people do 1 reentry, come back for a month and do another reentry.
While that may be fine for maintaining the green card, it probably won't be sufficient for accumulating the 5 years of continuous residence required for naturalization.
 
Oh Absolutely I agree! If you go outside of the US for more than 6 months - it will look fishy for citizenship - people get away with it but looks fishy. If you go out for 2 years or more - it will look disfunctional and not fishy from citizenship perspective.

But even if a person has been out for almost 4 years on GC and reentry permit - then after coming back and living in the US on a continuous basis (I think 4 years?) - then the person can apply for citizenship. So if you go out on an extended trip - you will not be barred for life from getting citizenship.

Disclaimer
---------
This might be totally bogus advice. Don't rely on it for sure.
 
Top