Keeping Your Green Card While Traveling

[tonado]

http://www.sampan.org/show_article.php?dis...5c533170d75cfda

 

 

Legal

Keeping Your Green Card While Traveling

 

Jul 1, 2005

 

by Nelson Suit

An immigrant who has obtained permanent residence in the U.S. should understand that, in spite of its name, permanent residency may not be "permanent." There are a number of events that can result in the termination of such status. I want in this column to discuss one of those events: the possibility that an immigrant could be seen as having abandoned the green card when traveling.

 

The issue generally arises when an immigrant who has recently obtained a green card decides to travel abroad for an extended stay for either work or family obligations. Under U.S. immigration laws, such immigrant may be denied admission back into the U.S. if it is determined that the immigrant has "abandoned" his or her intent to be a U.S. permanent resident and is not returning from abroad after a "temporary" visit.

 

Generally, if a green card holder does not travel outside the U.S. for more than 12 months, the question may not be raised. Also, if a green card holder does intend to be out of the country for more than 12 months for a specified purpose of limited duration (such as employment abroad), the green card holder can apply for a reentry permit prior to leaving the U.S.

 

But a permanent resident should nonetheless be aware of the factors that are often looked at to show intent to abandon permanent residence in case questions arise whether a trip abroad is of short or long duration. These factors include:

 

(1) location of the immigrant's family ties;

(2) location of immigrant's property holdings;

(3) location of immigrant's job;

(4) intention as to immigrant's actual home;

(5) length of time abroad;

(6) purpose for traveling abroad and whether such purpose was for a "temporary" visit.

 

It is important that a green card holder who travels for an extended period abroad continue to file U.S. income tax returns. As a green card holder, such person is subject to U.S. tax on his or her worldwide income. While there may be limited exemptions available for certain income earned abroad and possible credits for taxes paid abroad that may limit or eliminate actual U.S. tax liability, it is important that the income tax returns be filed.

 

Moreover, it is generally helpful to retain a U.S. bank account through which deposits can be made as that often indicates intent by the immigrant to return to the U.S.

 

Also, immigrants who may have had in process applications for permanent residence in other countries (such as obtaining landed immigrant status in Canada) may wish to consider terminating such petitions since obtaining permanent resident status in another country may be a factor to be considered in whether an immigrant has shown an intent to abandon U.S. residency.

 

Finally, for traveling outside the U.S. for more than 12 months, as noted above, the green card holder should apply for a reentry permit. The permit is applied for by using Form I-131 that can be obtained from the U.S. Citizenship and Immigration Services (USCIS) website. The reentry permit is generally valid for a two-year period.

 

The Form I-131 requires basic background information of the applicant as well as information relating to the purpose of the trip and expected departure date and duration. Thus, the intent of the trip can be documented on the reentry permit application. The applicant should include a copy of the green card and a filing fee of $165 with the application form. The form is filed with the USCIS Nebraska Service Center.

 

Disclaimer: This article is intended to provide general information only and does not constitute legal advice nor does it create an attorney-client relationship. You should consult with an attorney regarding the particular facts of your case to obtain proper legal advice.

 

Nelson Suit’s office is at 77 Franklin St., 3rd Floor, Boston, MA, 02110; (617) 542-3333 or (617) 542-3323. Suit has practiced law for over 10 years and graduated from Harvard Law School and Yale University.

[RickT]

Can you tell me whether the in-country US residence requirements for green card holders (including 2-year conditional ones) have been tightend up since this message was posted in 2005? My wife and I were informed at the end of our green card interview that she cannot be out of the US for more than 5 months in any given year, and that extended absences exceeding 5 months could jeopardize her green card and reentry into the country. Following the interview, I researched reentry permits (I-131) on line but the instructions did not site the stricter residence requirement and instead asserted (as this poster did in 2005) that generally for absences of less than 12 months it is unnecessary to apply for a reentry permit.

Can someone tell if whether in fact the rule has changed, where the rule change is documented, and whether and how it is being enforced?

thanks,

rickt

 

----------------

Legal

Keeping Your Green Card While Traveling

 

Jul 1, 2005

 

by Nelson Suit

An immigrant who has obtained permanent residence in the U.S. should understand that, in spite of its name, permanent residency may not be "permanent." There are a number of events that can result in the termination of such status. I want in this column to discuss one of those events: the possibility that an immigrant could be seen as having abandoned the green card when traveling.

 

Generally, if a green card holder does not travel outside the U.S. for more than 12 months, the question may not be raised. Also, if a green card holder does intend to be out of the country for more than 12 months for a specified purpose of limited duration (such as employment abroad), the green card holder can apply for a reentry permit prior to leaving the U.S.

 

Finally, for traveling outside the U.S. for more than 12 months, as noted above, the green card holder should apply for a reentry permit. The permit is applied for by using Form I-131 that can be obtained from the U.S. Citizenship and Immigration Services (USCIS) website. The reentry permit is generally valid for a two-year period.

 

The Form I-131 requires basic background information of the applicant as well as information relating to the purpose of the trip and expected departure date and duration. Thus, the intent of the trip can be documented on the reentry permit application. The applicant should include a copy of the green card and a filing fee of $165 with the application form. The form is filed with the USCIS Nebraska Service Center.

 

 

Nelson Suit抯 office is at 77 Franklin St., 3rd Floor, Boston, MA, 02110; (617) 542-3333 or (617) 542-3323. Suit has practiced law for over 10 years and graduated from Harvard Law School and Yale University.

[NY-Viking]

I don't have a definite answer, but since I'm considering accepting a job which would have me be in China, we've been looking into this as well.

 

Based on the very limited research I've done, they will look into your "intent" if you are out of the country for extended periods on a greencard and could cancel your greencard if it appears that you have "abandoned" US residency. The bright line is being out of the country for more than 1 year, but you can counter that by applying for a re-entry permit before you leave, OR by applying for a "returning resident" visa from abroad when you return.

 

Also, if it seems you are spending most of your time overseas and just coming to the US for visits, even being out of the country for less than 12 months may cause them to revoke your greencard.

 

For example, say you have a greencard and then go work in China. You work over there, own property there, etc., etc., but maintain some sort of residence in America (say an address at a friend's house so you can get mail or something). You always make sure you come to the US once a year to make an appearance, say visiting friends/family for a week at Christmas. If you continuously do this for several years, they may decide you have abandoned your status as a "permanent resident" and you could lose your green card.

 

The point is, a green card is NOT US citizenship and it is NOT a permanent visitor visa. It's a document that lets you reside, work, etc., etc. in the US permanently, provided you don't abandon your status (or commit a felony, etc.).

 

I should note that while I was working in China, I had some friends who had obtained US green cards, but did just what I described above, basically making sure that once a year they visited the US for at least limited periods. No one questioned their status, but it could have come up.

 

If you do stay out of the US for extended periods, it's a good argument to proceed to naturalization so you don't have to worry about having your intent to remain a permanent resident being questioned. US citizenship can't be revoked, generally, unless you take affirmative action to do so.

 

I should also note this doesn't just apply to Chinese citizens. I have a friend who was born in Canada, and her parents immigrated to the US, but for whatever reason she never got around to doing so, and just stayed a permanent resident. Once when she was going through immigration she was stopped and detained for an hour or so while her intent was questioned. (I've always told her serves her right for being Canadian ).

 

As the article above says, paying US taxes, maintaining bank accounts, property, bills, etc. in the US are all good evidence of your intent, but often it comes down to one person's judgment call.

 

One final thing, there are exceptions for SPOUSES of US CITIZENS in certain situations that would allow them to maintain residency if abroad for longer periods, but as with everything else in this post (and most of my posts) don't consider this a legal opinion - if you have a question, this might be something to see an immigration attorney about.

Edited February 23, 2008 by NY-Viking (see edit history)

[Jeikun]

My wife was in China for 9 months. When she reentered the immigrations person said that it was "unacceptable" and that they would let her slide this time, but if she left for more than 6 months again without a re-entry permit, she would lose her greencard. This was in Oct 2007.

[dnoblett]

My wife was in China for 9 months. When she reentered the immigrations person said that it was "unacceptable" and that they would let her slide this time, but if she left for more than 6 months again without a re-entry permit, she would lose her greencard. This was in Oct 2007.

Correct.

 

Maintaining Permanent Residence You may lose your permanent residence status if you commit an act that makes you removable from the United States under the law in section 237 of the Immigration and Nationality Act. If you commit such an act, you may be brought before the immigration courts to determine your right to remain a Permanent Resident.

 

You may be found to have abandoned your permanent resident status if you:

• Move to another country intending to live there permanently.
   
  
• Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
   
  
• Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
   
  
• Fail to file income tax returns while living outside of the US for any period.
   
  
• Declare yourself a ¡°nonimmigrant¡± on your tax returns.
  

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

 

Periods longer than 6 months can look like living in foreign country longer than in USA, also periods away from USA longer than 6 months resets the counter used for when a person can file to naturalize and become a US Citizen.

[NY-Viking]

My wife was in China for 9 months. When she reentered the immigrations person said that it was "unacceptable" and that they would let her slide this time, but if she left for more than 6 months again without a re-entry permit, she would lose her greencard. This was in Oct 2007.

Correct.

 

Correct that they could do it ... as with so many things in this process, it all depends on the discretion of the person at the time; like I said above, I know several people who had the "intent" to stay permanent residents, but were working overseas, and only made annual visits to the US. But their status was in jeopard, of course.

 

And, also, that was before 9/11 ... so rules/inspections may be more enforced now as well.

 

Periods longer than 6 months can look like living in foreign country longer than in USA, also periods away from USA longer than 6 months resets the counter used for when a person can file to naturalize and become a US Citizen.

 

I don't have time to do a search on the USCIS pages at the moment, but as I alluded to above, there is an exception if the US citizen spouse is working overseas for longer than a year in certain listed situations. In this case, the residency requirements for maintaining the green card and applying for naturalization are not affected if the green card holding spouse is accompanying the US citizen spouse, which makes sense.

[dnoblett]

My wife was in China for 9 months. When she reentered the immigrations person said that it was "unacceptable" and that they would let her slide this time, but if she left for more than 6 months again without a re-entry permit, she would lose her greencard. This was in Oct 2007.

Correct.

 

Correct that they could do it ... as with so many things in this process, it all depends on the discretion of the person at the time; like I said above, I know several people who had the "intent" to stay permanent residents, but were working overseas, and only made annual visits to the US. But their status was in jeopard, of course.

 

And, also, that was before 9/11 ... so rules/inspections may be more enforced now as well.

 

Periods longer than 6 months can look like living in foreign country longer than in USA, also periods away from USA longer than 6 months resets the counter used for when a person can file to naturalize and become a US Citizen.

 

I don't have time to do a search on the USCIS pages at the moment, but as I alluded to above, there is an exception if the US citizen spouse is working overseas for longer than a year in certain listed situations. In this case, the residency requirements for maintaining the green card and applying for naturalization are not affected if the green card holding spouse is accompanying the US citizen spouse, which makes sense.

Yes, for example if US Citizen spouse is working for the US Government as in Military, or some other capacity, this will not affect the residency requirement for naturalization.

[dnoblett]

OK, another way to not worry about keeping green-card, is to naturalize and become a US Citizen.

 

1. A Citizen Can Vote
   A citizen has the right to vote for elected officials at the federal, state and local levels who shape the policy of the government.
   
2. Dual Citizenship
   Certain countries, including Ireland and the United Kingdom, recognize "dual citizenship" permitting naturalized U.S. citizens to maintain their citizenship of birth and original passport.
   
3. Citizens Can Bring More Relatives From Abroad, More Quickly
   Citizens can petition for a wider variety of family members to come to the US as permanent residents. They also have much shorter waiting times for green cards, and no limits.
   
4. Citizens Cannot be Deported
   Most of us never expect to commit a crime, but if we are the victims of circumstance, in the wrong place at the wrong time, as citizens, we cannot be deported. We also don't need to worry about a lost green card or too-long stay outside the US preventing us from re-entering.
   
5. Citizens Can Retire Abroad With Full Social Security Benefits
   Citizens who retire abroad get all their Social Security benefits. Green card holders only get half of the benefits they earned.
   
6. Citizens are Entitled to More Public Benefits
   Citizens are eligible for more public benefits, including Supplemental Security Income (SSI) and Food Stamps, as well as certain academic scholarships and financial aid.
   
7. A US Citizen Can Hold Office and Have More Job Opportunities
   Only a citizen has the right to hold an elected position in most city, state or federal offices. Many federal, state and city jobs also require citizenship.
   
8. Adopted or Natural Children Under 18 May be Naturalized Automatically
   Depending on the circumstances, children born abroad, who are under 18 years of age and unmarried may be able to naturalize automatically when a parent does so.
   
9. Citizens Have More Financial and Tax Benefits
   Citizens often receive approval on loans and mortgages more easily, and/or they get better rates, because the lender knows there is less chance they will defect. Citizens are often subject to fewer restrictions on estate taxes as well.
   
10. Citizens Don't Have to Worry About Renewing a Green Card Every 10 Years
    We have enough to worry about with passports and other paperwork. As citizens, we don't have to worry about renewing a green cards every ten years.
    

http://immigration.about.com/od/whybecomea...0CitizenBen.htm

[NY-Viking]

Yes, for example if US Citizen spouse is working for the US Government as in Military, or some other capacity, this will not affect the residency requirement for naturalization.

 

It doesn't have to just be US government or military; there's something about working for a US company overseas that furthers US trade. I think that can be just about any US company; I'm not sure what happens if you're working for a non-US company.

 

On the other hand, if you're just "living" overseas (e.g., retired to Thailand or Costa Rica or something) - that doesn't seem to cut it. But, I'm willing to bet that if you maintained a US residence and came back to the US TOGETHER each time and went through the Citizens line TOGETHER, you probably wouldn't have much of a problem. The issue is a lot more likely to come up if the green card holding spouse is travelling back to the US alone, IMHO. But there's no law/provision for this opinion.

[NY-Viking]

OK, another way to not worry about keeping green-card, is to naturalize and become a US Citizen.

 

That's a pretty good description of advantages. Of course, the biggest one being you get to be a citizen of the USA, but I digress.

 

My wife and I have been discussing this lately, and while she understands some of those advantages, she also is worried about losing the benefits she's earned in China. True, she might not have to tell China she's a US citizen, but since China doesn't recognize dual citizenship, not sure what would happen if it found out (e.g., when she went to renew a China passport).

 

Anyone have this discussion with your spouse?