After more than 15 years of waiting for the priority date to become current, Luis was finally issued an immigrant visa with his spouse and minor children. Upon issuance of the visa, Luis traveled to the United States and stayed with his brother while he settles to find his own residence. In the meantime, Luis’ children are all in high school and want to return to Manila to finish their education. After serious consideration, Luis allowed his spouse and his minor children to return to Manila. He initially stayed in the US to find work to support his family.
After several months Luis realized that it was not easy to find a job. In fact, he personally knows relatives and friends who lost their jobs and their homes. Frustrated with his situation and missing his family, he decided to obtain a “reentry permit” and departed for Manila to resume his employment and attend to their businesses
Luis has no plans to return to the US in the next two years. His spouse, Rhea, is very apprehensive about the status of their green cards if they do not return to the US.
Time Spent Outside the US
Entering the United States for a few weeks and returning to Manila thereafter gives rise to an issue of abandonment of residence. Some green card holders are under the impression that they will be able to maintain their lawful permanent resident status as long as they enter the US “at least once per year”. This may be too simplistic and may carry mistaken beliefs of what actually constitutes abandonment.
A returning resident is one who is returning to the United States from a temporary visit abroad and it the stay abroad was protracted, this is caused by reasons beyond the control of the individual and of which he is not responsible.
What constitutes a temporary stay abroad will actually depend on the circumstances of each case and not necessarily the length of stay spent outside of the United States. The periods of stay abroad are initially points of reference for the Customs and Border Protection (CBP) inspector at the airport but these inspectors are not prevented from inquiring further into the “intention of the green card holder” for purposes of abandonment.
Generally a lawful permanent resident returning to the United States after an absence of six months or less will be treated as if he or she never left the United States. This is the “less than six months” rule.
If returning to the US after six months but less than one year, the green card holder bears the burden of the presumption that he never intended to abandon his residence. He is deemed to be seeking admission.
If the stay abroad has been for more than one year, a re-entry permit or a returning resident immigrant visa is expected to be presented to the CBP inspector at the airport.
No Abandoning Acts
The fact that the “less than six months” rule is generally applies does not necessarily mean that a green card holder should return every six months and leave again to return before the sixth month. If this is the situation, while there will be no admission issues if the absence is less than six months, the pattern of entry and departure becomes a critical factor during the inspection process. If the CBP inspector, through the database available to him, determines that more time is spent in Manila than in the US, then the question turns into identifying his principal place of abode to validate whether the individual is maintaining his US residency.
Most abandonment findings are a result of green card holder’s committing the “abandoning acts.” Subjective intent to maintain green card status must be supported by objective evidence such as the (1) purpose of trip outside the US; (2) nature of the employment whether it is temporary or indefinite; (3) filing of US taxes as a resident; (4) ties in the US to include house, bank accounts, credit cards state identification card or driver’s license; (5) residence of immediate family members.
If an individual has a protracted stay outside the US and still wants to maintain his green card status, the burden is on him to show that his principal place of abode and his unrelinquished residence is in the US. A re-entry permit may be applied from the USCIS. Preparing documents to prove ties in the US and carrying them during their return to the US is likewise advisable.
Should there be a finding of abandonment at the airport, the CBP inspector may issue a Notice to Appear and put the individual into removal proceedings before an immigration judge. Or in the alternative this individual may be asked by the CBP inspector to sign a Form I-407 abandonment of permanent residency status. If there is no intention to abandon, the individual should not sign this 407 form.
Considering the difficulty of obtaining green cards or US resident status, those who are now afforded the opportunity to live and work in the US should maintain their status as long as possible. While circumstances differ for each individual case, it is important to realize that nothing is permanent in character including the green card. It is either you “use it or lose it.”
(Tancinco may be reached at law@tancinco.com or at (02)887 7177)
