Jeremiah was granted U.S. lawful permanent resident status in 2005. In 2009, he went back to Manila to visit his parents. While there, his 90-year old mother passed away. He spent a significant time in Manila caring for his father who was also in failing health and trying to get her mother’s estate in order. After almost two years in Manila, he finally returned to the United States in 2011.
Upon his arrival at the port of entry in LA California, he was issued a Notice to Appear. The Customs and Border Protection inspector charged him with abandonment of his permanent residence status and paroled him in to attend his hearing.
Jeremiah must now convince the immigration judge that he never intended to abandon his status. If he is not able to effectively contest the charge of abandonment, his green card will be revoked and he will be sent back to the Philippines. How will Jeremiah proceed with his case?
Failure to Return in One Year
If a green card holder remains outside the United States for more than one year, he is presumed to have “abandoned” his resident status and his green card could be invalidated/terminated by the Department of Homeland Security. Unlike other travelers, however, the immigrant or green card holder is not subject to an expedited removal (or what is commonly known as “airport to airport”). He has the right to a hearing before a judge to contest the findings of abandonment by the Department of Homeland Security. Whether or not an individual green card holder will be brought to an immigration judge for a hearing will depend on the circumstances of the case. If there are valid reasons to show that there was no intent to abandon, then the individual will not be removed and will be allowed to retain his green card.
Contesting Abandonment
When there is absence of more than one year, a green card holder may either contest abandonment through the consular office of the U.S. Embassy or before the Immigration Court upon entry to the United States.
To avoid the trouble of prolonged interviews or extensive questioning at the port of entry upon arrival in the United States, contesting abandonment before entry may be done before the consular officer at the U.S. Embassy. This means applying for and getting approval for an SB-1 visa or a returning resident visa. A returning resident visa application is filed directly with the U.S. Embassy by filling up form DS117 and DS230. There is a non-refundable fee of $380.
Returning residents must show the consular officer that when they departed from the United States, they had every intention of returning and have not abandoned their US residency. In addition, they should be able to show that their trip outside the United States was temporary; that their protracted stay was caused by reasons beyond the green card holders’ control for which they are not responsible.
Documents Showing Unrelinquished U.S. Residence
The Department of State’s guidelines on what constitutes proof of ‘abandonment’ include failure to pay U.S. taxes and strong ties in the Philippines. If the green card holder has family members, properties, businesses located outside the United States and there were frequent absences from the United States, there is greater likelihood that permanent residence status would be considered abandoned and the green card revoked.
It is important therefore that the application for returning resident visa must be supported by sufficient evidence in order to establish his clear intention to maintain his US residency despite a lengthy absence. Proof of this intention may include a valid driver’s license from the State where he is a resident, a showing that the extended visit was caused by unforeseen circumstances, payment of U.S. income taxes, among others.
Studying Outside the United States
Despite lengthy absences of green card holders who happen to be students getting their education outside the US, applications for returning resident visas for this class of permanent residents are likely to be approved. Temporary purpose is not necessarily determined by lapse of time. As long as there is a projected time of return, the green card holder will not be charged with abandonment.
For students studying outside the United States, proof that a degree will be obtained within a definitive time frame is important in obtaining the returning resident visa to establish intent to go back to the United States after completion of study. Consular officers will consider evidence of family still living in the United States and a showing that the green card holder student returns to United States at the end of each academic term to rebut a presumption of abandonment.
Jeremiah’s Case
Since Jeremiah traveled back to the United States without a re-entry permit or a returning resident visa, proof of non-abandonment of status must now be established before the immigration court. Jeremiah would be covered by the same Department of State guidelines and required to take on the same evidentiary burdens that a returning resident would be required to do before the consular officer at the U.S. Embassy, only this time, he would have to do so before an immigration judge.
Remember that an immigrant’s residence status is not a right but simply a privilege. As such, it may be revoked if there is a failure to appropriately contest the issue of abandonment.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
