Keeping the green card despite extended trips

Anna was petitioned by a  financial institution in New York.  But three years after getting her green card, Anna was laid off.

She accepted a job in the Philippines, where she earned almost the same salary as in New York, and made several trips to the United States the last two years for vacation and to visit to her family.  On her most recent visit,  she was asked about her activities abroad by agents of the US Customs and Border Protection (CBP).

Anna fears she may have to give up her immigrant status. What can she do?

With globalization, a resident alien may be working in more than one country  and is out of the United States for extended periods of time. But there are steps a green-card holder can take to reduce the risk of losing his/her permanent resident status.

Not just time

It is not just time spent outside the United States that determines whether or not a green-card holder can keep his/her resident status. Actually, what is important is his/her intent.

Several factors, including time spent outside the United States, are taken into account to determine intent. Returning to the United States every so often, does not “automatically revalidate” the green card.

If the green-card holder is away for less than six months, barring other circumstances, the CBP inspector typically allows automatic entry. When a person stays abroad for a long period and seeks admission, he/she may be asked about the purpose of the entry and his/her ties in the United States.

On rare occasions, the person may undergo removal proceeding if the inspector thinks he/she has abandoned his/her US residency.

Under existing regulations, the Department of Homeland Security requires invalidation of the green card of a permanent resident who is  out of the United States for more than one year unless he/she can show proof he/she wants to keep his/her resident status.

Green-card holders  have the right to due process although some, who no longer want to live in the United States permanently, voluntarily leave.

Exploring options

If Anna wants to keep her green card, she should establish intent to maintain residence in the United States. She can offer as proof of ties to the country property ownership, bank accounts, payment of taxes, etc.

If she has to stay in the Philippines for more than a year due to circumstances beyond her control, she should consider applying for the special immigrant visa (SB1) before returning to the United States. To get the visa, she should prove her stay in the Philippines is temporary and the lengthy stay was unavoidable.

Anna can also file the Form I-193 Application or Waiver of Passport and/or visa at the port of entry. If approved, she will be allowed in the United States. If denied, she will have to attend a removal hearing and explain herself to an immigration judge.

If continuing possession of a green card is actually not needed for stay or travel, voluntary abandonment of Anna’s green card (by executing a Form 1-407 at the US Embassy or at the port of entry) is always an option. This is usually taken by those with immediate relatives,  i.e.  US citizen spouse or parent or a 21-year-old child, who can petition them at some future time.

Whatever option is taken will depend on the circumstances of each individual case. Since it takes years and a lot of effort and money to get an immigrant visa, it is important to know one’s options and take the steps needed to preserve one’s green card and prevent the unintended loss of one’s immigration status.

(Tancinco may be reached at [email protected] or visit her website, www.tancinco.com, or contact her at 8877177 or 7211963.)