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(#148-04/16/01)

Green Card Holders Giving Birth in Japan
Lay Offs and the HIB Visa Holder


Q. My husband and I both have green cards and live in Los Angeles. I am pregnant. What if I return to Japan and my baby is born there? Can my child return with me?

A. A child born during the temporary visit abroad of a mother who has a green card can return to the United States, provided that

  1. the child's application for admission to the United States is made within 2 years of birth,
  2. the child is accompanied by the parent who is applying for readmission upon the FIRST return of the parent to the United States after the birth of the child, and
  3. the accompanying parent is found to be admissible to the US. The child's birth certificate must be presented to the INS.

It is also a good idea to check with the airlines bording policy in such situations. Some might want a travel letter issued by the US Embassy prior to allowing the child to board the airplane, although it is technically not necessary. If the mother expects to remain outside of the US for 6 months or longer it is a good idea for the mother to apply for a "reentry permit" prior to leaving the US so that the INS does not try to argue that the mother has "abandoned" her green card.


Q. I am currently working in H-1B status for an employer. I am starting to hear rumors that many people at my company will be laid off. What should I do?

A. Since H-1B classification derives from the approved employment, the legal status ends if and when the employment ends. There is no grace period. Accordingly, if an H-1B or other employment-based nonimmigrant is laid off, the only chance for getting the INS to approve a request to change status or change to another H-1B employer after that time is to include a letter with the application asking the INS to exercise its discretion to approve the change in spite of the status lapse. Whether this is done depends largely on the facts of the case, typically that the lapse was short and the reason for it beyond the alien's control.

It is important to take care of one's immigration status immediately. Sometimes the best short- term solution is to request the INS to change your status to B2 (visitor) so that you have a few months to look for a new sponsor.

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