I-130 Family Immigration (green card, uscis, certificate, application)
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I am US citizen and in the processed my father USA Green Card as he is here on US visit visa. He currently works for Indian Government (Central Deemed University). We already applied for his US Green card but he never informed his office about this formally or informally. He is on extended leave from last three months as the whole green card process needs 6 months to be completed.
Then I found that as per "DOPT OM No. 28034/34/86-Estt. (A) dated 14.07.1988" No Government servant should apply for or seek emigration to any other country so long as he is in Government service. The question of issuing ‘No Objection Certificate’ to a Government servant, who wishes to migrate to a foreign country, therefore, does not arise.
Will appreciate any related info.
--------[DOPT OM No. 28034/34/86-Estt. (A) dated 14.07.1988]--------------- (2) Emigration of Central Government Servants to other Countries References are received from Ministries/Departments seeking clarifications regarding grant of ‘No Objection Certificate’ to Government employees for seeking emigration to foreign countries. The matter has been considered carefully and it has been decided that no Government servant should apply for or seek emigration to any other country so long as he is in Government service. The question of issuing ‘No Objection Certificate’ to a Government servant, who wishes to migrate to a foreign country, therefore, does not arise. [DOPT OM No. 28034/34/86-Estt. (A) dated 14.07.1988] Referencer | Central Civil Services Conduct Rules 1964 | GOI_Decisions_25
Surely this is a pretty clear directive from the Indian government. I doubt the US government has any interest in the matter but assume that if your father is successful in obtaining permanent resident alien status he will likely lose his government position. Given that the US permanent resident alien status requires him to live in the US, how could he at the same time work for the Indian government anyway?
Be sure that he doesn't overstay his US visitor's visa ...
He entered US in June 2014 with I-94 stamp for 6 months. So he can stay till December 2014.
He has another 3 years to retire and he don't want to take premature retirement in any case.
To maintain Green-card, person have to stay here in US for atleast 180 days in a year and file the yearly taxes.
I talked to Ministry of Indian Overseas and they said they cannot confirm or deny whatever is given in "DOPT OM No. 28034/34/86-Estt. (A) dated 14.07.1988"
I even want to know if parents should have had to 'DEPENDENT' to file for their Green card as he is currently in active job, have properties and other kids.
That is something he has to figure out with the Indian government. It may come into play when he is ready to receive a pension. This is a guess!
Your father cannot apply for a Green Card as a rule of thumb. A US citizen his to sponsor his application which is you. Does he want a Green Card and the obligations associated with it?
It sounds as though it would be easier if you waited for three years until his retirement to sponsor him for a GC. As Threestep points out, there are obligations under permanent resident alien status and he's not free to come and go while on it so again the question is, how can he retain his current position with the Indian government while fulfilling his US status? You say he doesn't want to take early retirement so what overall plan were you thinking of?
Being 62, he has saved 14 months of leave which he can use. He can even go for leave without pay if needed. But he want to maintain his govt.of india postion as well. He is yet to tell his office about this formally or informally.
To my understanding, person has to be in USA only for 180 days every year to maintain their GC. Correct me if i'm wrong.
USCIS never asked for any "no objection certificate" while filling his I-130. So i'm confused and dont want to mess my situation here for no reason.
To my understanding, person has to be in USA only for 180 days every year to maintain their GC. Correct me if i'm wrong.
The problem is that if he does this "come and go" routine it's going to raise suspicion and he may be flagged after doing it a couple of times and could possibly end up losing status. USCIS is very clear that someone who is given permanent resident alien status is intent on living permanently in the US, not to come and go.
Why is it not feasible to wait until his retirement? He can easily come and visit you for a couple of months at a time. I think you're contemplating a tricky move which could backfire on you without even taking into consideration the intent of his Indian government employer.
To clarify, this is from the USCIS website (you can read the whole thing under "Green Card" on the site linked in the first "sticky" on this forum):
Does travel outside the United States affect my permanent resident status?
Permanent residents are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status. A general guide used is whether you have been absent from the United States for more than a year. Abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence. While brief trips abroad generally are not problematic, the officer may consider criteria such as whether your intention was to visit abroad only temporarily, whether you maintained U.S. family and community ties, maintained U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver’s license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.
Being 62, he has saved 14 months of leave which he can use. He can even go for leave without pay if needed. But he want to maintain his govt.of india postion as well. He is yet to tell his office about this formally or informally.
To my understanding, person has to be in USA only for 180 days every year to maintain their GC. Correct me if i'm wrong.
USCIS never asked for any "no objection certificate" while filling his I-130. So i'm confused and dont want to mess my situation here for no reason.
Thanks for your detailed message. It helped me in understanding that you cannot apply for immigration being in indian govt. services in any case. And even if it was not the case, you cannot travel so frequently to india while on GC.
As we already filed I-130/I-485 petition for him, what can be done now? he have two choices - either he withdraw his petition or resigned from Indian services.
But I'm concerned about the other thing, Were we supposed to tell USCIS that he is actively serving in govt. of India and not dependent on us ? though they never asked that in any of their forms. As I'm sponsoring him and I don't want to hide any related information
Thanks for your detailed message. It helped me in understanding that you cannot apply for immigration being in indian govt. services in any case. And even if it was not the case, you cannot travel so frequently to india while on GC.
As we already filed I-130/I-485 petition for him, what can be done now? he have two choices - either he withdraw his petition or resigned from Indian services.
But I'm concerned about the other thing, Were we supposed to tell USCIS that he is actively serving in govt. of India and not dependent on us ? though they never asked that in any of their forms. As I'm sponsoring him and I don't want to hide any related information
As mentioned earlier, USCIS at this point isn't interested in his employment in India. The assumption is that once/if he achieves status he'll become a bone fide resident of the US subject to the contingent obligations.
Only your father can make the decision but if he doesn't want to take early retirement then I suggest you simply withdraw the application and present it when he's retired and is able to live permanently in the US.
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