Today, the cycle seems to have come a full circle as migration from Boston to Bangalore takes the place of the past rush from Bombay to Boston! The infallible dream of one day returning back home is a reality now and increasing numbers of people of Indian origin from U.S and other parts of the world have transformed their lives and have once again started new life and business adventures in their homeland. However before we start this journey back, we need to remember that quite a few of us have created ties, and particularly immigration ties, in this land of opportunity. It is equally important that we take all precautions to safeguard our immigration or nonimmigrant status in this country. Especially with the changing face of the immigration policies in U.S., it is imperative that we ensure ours and our families’ immigrant or nonimmigrant status in U.S. is not violated.

The safeguards would definitely differ from individual case to case, however generally they may be summarized for various categories as follows:

Non Immigrant Visa Holders:
This category covers a majority of persons who have entered this country on Non Immigrant visas like H, L and so on. Non Immigrant Visa holders who do not have any kind of Immigrant Petition or process filed for them can rejoice as their responsibility is only limited to maintaining their valid non immigrant status in this country. They need to check and ensure they do not overstay their approved periods of stay as mentioned on their Form I-94.

For the Non Immigrant Visa holders, who have intentions of permanently settling in U.S one day and have initiated their immigrant processes in form of Application for Alien Labor Certification Processes (typically for “H” visa holders) and/or immigrant visa petitions, the road is a little difficult and more tricky. The beneficiaries of pending Labor Certification Applications needn’t worry. The process can continue in their absence even if they relocate to India. At the stage of approval of the Labor Certification application and filing of the Immigrant petition (I-140), the petitioning employer can choose overseas consulate processing for the place where the beneficiary is presently staying and the Beneficiary can then obtain an immigrant visa to enter the U.S.

However, for those who already have Immigrant Petitions pending, the process of having to change to consulate processing is more time consuming. They have the option of requesting the Immigration Services to transfer their files for consulate processing; however given the present backlog at various Service Centers, such applications can take anywhere from 1 year to longer periods. In the past, we have had some cases where the consulate has approved the immigrant visa based on the receipt notice for the application to change the process to consulate processing. But this is not a general practice and is upto the discretion of the consulate.

For the non immigrant visa holders who already have a pending adjustment of status applications with U.S. CIS, it is not advisable to travel and be absent from U.S. for long periods during pendency of the application. Hence the limited recourse they have is same as mentioned above, namely of requesting for the change of notification to consulate processing.

Permanent Resident Aliens:
A Permanent Resident Alien (popularly referred to as the “Green Card” holder) who spends lengthy periods of time outside the U.S. must take careful precautions to preserve his or her U.S. permanent resident status. Prolonged absences from the U.S. may present problems upon reentry, as the Immigration Services may consider that the returning resident has “abandoned” his or her permanent resident status. The “temporary” absence abroad, should not exceed six months. However, returning within six months or returning to the United States once a year is NOT sufficient to maintain permanent residence.

For Permanent Resident Aliens (LPR) who know that they may not be able to return back to U.S for periods of more than a year, it is advisable that they apply for a “Reentry” permit. A Reentry permit allows an LPR to remain outside the U.S. for up to two years. However, the applicant must apply for a reentry permit while still in the U.S, and eligibility is based upon a determination by the Services that the alien seeks the permit in connection with a good faith, temporary absence abroad. Reentry permits are valid for two years from the date of issuance and in appropriate circumstances may be renewed. However one has to be physically present in U.S for applying the renewal.

Even after the application/approval of the Reentry Permit, it may serve as a strong, but not conclusive proof of the intentions of the LPR to retain his/her status in U.S. The LPR must show that he or she is returning to an un-relinquished lawful permanent residence in the United States. The various considerations that may determine the LPR’s desire and intent to return after a temporary absence abroad may include, but not be limited to, the following:
l Purpose of departure from U.S.: should have a definite reason for traveling abroad temporarily, such as for education and professional training, or for a temporary work assignment. Employment for a definite period, even though somewhat extended, would be a sufficient purpose for departing, as long as a fixed termination date is reasonably clear before taking up employment abroad. In addition, indefinite employment abroad, when assigned by a U.S. employer, is also a suitable purpose for absence from the country.

l The location of the LPR ties, such as his family, job, property, continued payment of taxes as a U.S. resident for each year in which the LPR claims lawful resident status, maintenance of bank accounts, credit cards, driver’s license, memberships and so on are essential indications of intention.
If a LPR is absent from the U.S. for more than one year without obtaining the reentry permit, the LPR must apply for the Special Immigrant Visa at a U.S. consulate abroad. With this special visa, s/he will be readmitted to the U.S. as LPR.

Whereas the Re-entry Permit may allow the LPR to enter U.S. after long absences, however, even with a reentry permit, the Immigration Services counts the time toward U.S. citizenship from the day one returns, since LPR was outside the country for more than one continuous year. Absence by an LPR for a continuous period of one year or more during the period for which continuous residence is required for citizenship purposes will break the continuity of such residence. The only limited exception is for certain international business people, religious workers, government employees, researchers for certain U.S. research institutions, sea men and women, and people serving in the military.

An Application to Preserve Residence for Naturalization Purposes (N-470) may be filed along with the Reentry Permit but the absence may be approved only if limited grounds are fulfilled namely:

l Absence in the employment of, or under contract with, the United States Government or an American institution of research recognized as such by Services or

l Absence in the employment of an American firm or corporation, engaged in whole or part in the development of foreign trade and commerce of the United States or a subsidiary thereof, more than 50 percent of whose stock is owned by an American firm or corporation, or

l Absence in the employment of a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence.

In order to qualify for such approval the applicant must have been physically present and residing in the United States, after being lawfully admitted for permanent residence, for an uninterrupted period of at least one year.
For the LPRs who have minors adjust to status in U.S. with them, it is important that they ensure that the status of the minors is also maintained. It is noteworthy that for minors who have received the LPR card when they were less than 14 years of age, the Services requires the renewal of the LPR cards after one attains the age of 14 years.

U.S. Citizens:
Indians who have become U.S. Citizens require the necessary visa and permits to enter and work in India. The same is true for the people of Indian origin who are U.S. citizens by birth. They are also required to register periodically with the Foreigners Registration Officer at district headquarters.

However people of Indian origin also have the option of applying for the People of Indian Origin Card. It is for Indians who hold a foreign passport living abroad till the fourth generation. The People of Indian Origin Card allows visa free entry to Indian origin people living abroad, and give them all the rights enjoyed by Non-Resident Indians (NRIs) with the exception of voting. It also allows the foreign nationals to purchase of non-agricultural land, excluding Jammu & Kashmir; exemption from registration if his stay in India does not exceed 180 days. However, if the stay exceeds 180 days, the PIO Card holder will have to register within 30 days of the expiry of 180 days with the concerned Foreigners Registration Officer at district headquarters; allow their children to be admitted to educational institution in India under the NRI category. These include the IITs and Indian institutes of Management and may also have benefits from housing schemes of the Life Insurance Corporation, State Governments and other Government agencies.

A well planned and thoughtful relocation back to the country would make it more pleasurable and stress free stay abroad. The aforesaid guidelines are mere suggestions and it is advisable to consult a legal expert for more complex cases.