Dear Atty. Lou,
I immigrated to the US in 1994 based on the petition of my mother. My family and my four children migrated with me. As my children were growing, my husband and I decided to go back to the Philippines in 2003 and send our children to school there. We resided back to the Philippines but made it a point to return once a year as per advise of our close family friends to avoid having problems with our green cards.
In 2005, we were advised to file for re-entry permits. We applied twice and the last re-entry will expire this year. During our last trip here in the US, the Customs Border Protection (CBP) Inspector gave us a warning that he will take away our green cards and put us in deportation court if we did not stay in the US longer. We showed him our re-entry permits but according to him that this is not enough proof to show that we are not abandoning our lawful permanent resident status.
I am now confused Atty. Lou, why is it that despite having reentry permits we are still having problems at the port of entry? When is it that we are considered to have abandoned our resident status?
Concerned With Status
Dear Concerned,
There is a lot of misinformation about the length of time that one is allowed to stay outside the US without jeopardizing his status. A green card holder will risk losing permanent resident status if there is a finding of abandonment of permanent residence. One is to be regarded as maintaining status after a temporary absence abroad if the trip is considered temporary. This means that the trip (1) is for a relatively short period, fixed by some early event; or (2) will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. The visit will be considered “temporary” only if the green card holder has a continuous, uninterrupted intention to return to the United States during the visit. These standards are from the US Court of Appeals for the Ninth Circuit ruling in the case of Singh v. Reno 113 F.3d 1512.
If the green card holder stays outside the US for over a year s/he runs the risk of losing the green card. Also, there is a provision of law which requires the green card holder to return from a trip abroad in less than 180 days to avoid being regarded as seeking admission. Most of the green card holders interpret this to mean that the trip outside the US should not exceed six months.
Immigration and Nationality Act §101(a)(13) considers the green card holder as having failed to maintain status if he or she “has abandoned or relinquished that status” regardless of the time spent abroad. This means that the “intent” rather than specific time frames is the critical element in determining whether the individual abandoned or maintained his/her lawful permanent resident status.
It is true that re-entry permits will allow the green card holder to return to the US after a brief temporary stay abroad up to two years. However, this does not mean that the ties in the US are totally abandoned. There still has to be proof that the green card holder maintains strong ties in the US and that the intention to stay in the US is clear after the trip abroad. Perhaps, during your interview, there was no proof presented that you plan to reside in the US.
Possessing a re-entry permit does not prevent a Customs and Border Protection inspector at the US Port of Entry from inquiring into the reasons for a lengthy absence. The inspector may still find abandonment based on actual intent of the green card holder.
The re-entry permit must be filed by the green card holder while still in the United States. As of last year, all applicants for re-entry permit will be scheduled for biometric appointments. If the applicant departs the US before biometrics is taken, the application may be denied. It is important to go through the biometrics which may be expedited before departing the US to obtain the re entry permit.
I hope this information is helpful and that you will decide which country you wish to permanently reside.
Atty. Lou
*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com
