English Article 40

From time to time, we receive inquiries about Immigrant visas (also Naturarization) from clients and prospective clients asking the following questions. We decided to compile the most popular ones and print the answers here for everyone's reading pleasure.

1. I married a US citizen several years ago and received a green card. Now, we are getting divorced, do I automatically lose my green card if we get divorced?

ANSWER: No, if you were married for less than two years at the time your green card was approved, you will obtain a temporary green card, good for a two year period. If you get divorced within that two year period, you can still apply for a conversion to a permanent green card but you would have to show that the marriage was entered into for bona fide reasons and there would certainly be a higher level of proof than if your marriage was continuing. If however, your first green card, was not conditional (it is good for 10 years), getting divorced at any time after you obtain the green card, will not effect its validity or your ability to renew it at a later time.

2. I am being sponsored by a company for permanent residence and I filed a labor certification with the labor department. Recently, it was approved by the labor department. My friend told me that this is a work permit, does that mean that I can now legally work with this permit for my company?

ANSWER, No. A labor certification is the first step to obtain permanent residence in many employment based applications. Merely obtaining labor certification does not give someone the right to work for an employer. It does give you the right to go to the next step of the process, namely, the filing of an I-140 and possibly a I-485. At the time you file an I-485, you can apply for an employment authorization document (EAD) which is issued by the USCIS and is, in fact, a "work permit". Therefore, unless you have another visa, for example, an H-1b, you cannot work for an employer merely because you have an approved labor certification from the Labor Department.

3. I am a green card holder but I need to move back to Japan. If I return to the U.S. for a week every six months or so, can I keep my green card?

ANSWER. No. The law is more complicated than it appears. Basically, to preserve your right to a green card, you have to show upon each entry to the United States that you are an intending immigrant, that is, someone who intends to live in the U.S. on a permanent basis. Obviously, if you have been living in the U.S. and you have been gone a month, the CBP border patrol will not give you a hard time. If you have been out of the country for more than 6 months and are coming to the U.S. for a week, you may have more of a problem. The way to avoid problems temporarily is to apply for a re-entry permit, good for up to 2 years with the possibility of extension. The re-entry permit allows you to re-enter the U.S. without questioning your intent. Therefore, there is no specific time that you have to spend in the U.S. but as a general rule, a person who is absent from the U.S. for a period of greater than 6 months is subject to greater scrutiny at the border.

4. If I obtain US citizenship, I heard that I will automatically lose my Japanese citizenship, is that true?

ANSWER: No. Although we are not experts on Japanese immigration law, it is our understanding that upon obtaining US citizenship, the Japanese national should report this to the Japanese embassy or consulate and renounce their Japanese citizenship. The loss of Japanese citizenship is not automatic but requires a formal renunciation on the part of the national. The United States recognizes dual citizenship, but Japan does not. Therefore, although having two nationalities is not a problem in the U.S., it is under Japanese law. As we are not specialists in this area, we strongly recommend that you check with the Japanese government authorities regarding this issue since it is complicated.