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How long can a Green card holder stay out of US - 1 year or 6 months?

Bronx, NY |

We know, a green card holder can stay out of US up to 1 year & can reenter into US without reentry permit. This is what clearly stated in laws & an established policy for a long time. But most recently, I have heard about some instances from my relatives & friends that, even though they reenter US within 1 year with Green card, still they are facing trouble at NY airport and being asked by the immigration polices why they stayed out of US for 6 months plus. I checked the laws but didn't find any change regarding this policy. I have recently got my US immigrant visa but I will have to travel back & forth for first 2/3 yrs (once/yr) due to my current job contract in my home country. But I am getting worried hearing those instances. Could you please clarify me on this issue?

Attorney Answers 5

Posted

Maintaining Residence:

As per INA 101 (a) (13) (C) – An alien lawfully admitted for permanent residence in the U.S shall not be regarded as seeking admission into the U.S. for the purposes of immigration laws unless the alien:

1) Has abandoned or relinquished that status;

or

2) Has been absent from the U.S. for a continuous period in excess of 180 days.

While under normal circumstances the USCIS/DHS tends not to claim you have abandoned resident status unless you have spent over 180 continuous days outside the U.S., they are still permitted to find so in certain circumstances and there are cases were they have done so. Circumstances that have instigated such finding:

1) Extended or frequent absences from the U.S;
2) Disposition of property or business affiliation in the U.S;
3) Family, property or business ties abroad;
4) Conduct while outside the U.S such as employment by foreign employer; voting in foreign election, running for political office in foreign country; or
5) Failure to file U.S income tax returns.
The Code of Federal Rules is silent in regards to trips less than 6 months duration, even when there are frequent trips, but please bear in mind that as per INA 101 (a) (13) (C) you can be deemed to have abandoned residence even for trips less than 6 months, and frequent trips can be questioned. It is to be noted that the N-400 application for naturalization form contains a question about the number of trips you have made outside the U.S. showing the relevance of frequent trips.
The regulations 8 CFR 316.5 (c)(1)(i) state that where the absence is more than 6 months but less than 12 residence may be interrupted even if: 1)the applicant did not apply for or otherwise request non-resident classification for tax purposes; 2)Did not document an abandonment of lawful permanent resident status and is still considered a permanent resident under immigration laws.
The regulations 8 CFR 316.5 (c)(1)(i) state that a finding that residence has not been interrupted will be supported if:
1) If the applicant did not terminate his or her employment in the U.S;
2) The applicant’s immediate family remained in the U.S;
3) The applicant retained full access to his or her U.S abode; or
4) The applicant did not obtain employment while abroad.
The code does state that supporting documentation is not limited to these specific categories of evidence.
In practice, while there may be circumstances where one would instinctively feel that even though an individual has spent considerable time overseas, he has not in fact abandoned or interrupted residence in the U.S. (Example: 1)family member traveling abroad to take care of a sick relative 2)a student going abroad to complete a specific program of study , eg. Bachelors, masters 3) executive taking an overseas assignment.) applications are denied because the individual has one period of stay longer than 6 months. The service does not seem interested in explanations for the absence where one of the four factors in the regulation are not present. Ie if the applicant terminated his employment in the U.S, or family traveled with him, or he did not retain full access to a abode in the U.S, OR obtained employment abroad.
Where the trip abroad has been for duration larger than a year, a reentry permit is required to be admitted again. The re-entry permit needs to be applied for prior to departure from the U.S. While a reentry permit supports a finding that residence has not been abandoned it is not conclusive. You can be found to have abandoned residence even if you are in possession of a re-entry permit.

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Pradeek Susheelan

Pradeek Susheelan

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ANYTIME a green card holder leaves the U.S., that person is subject to being accused by the Immigration and Naturalization Service (I.N.S.) of having abandoned the intention of living in the U.S., and is subject to having the Greencard taken away--on the spot. Therefore, green card holders must always take certain PRECAUTIONS in order to be able to prove to the I.N.S. that they have never abandoned the intention of living in the U.S. permanently. Simply returning to the U.S. once a year for several weeks to use the Green card is NOT enough! Many green card holders have lost their green cards--even though they returned to the U.S. once a year. PRECAUTIONS: Consequently, it is very important that other precautions, such as the following, be taken: 1. OBTAIN A REENTRY PERMIT • If you will be leaving the U.S. for more than one year, but less than two years, it is advisable to obtain a reentry permit prior to leaving the U.S. • Note that if you continue to request a number of reentry permits (one after the other) the I.N.S. is likely to deny your application. 2. FILE TAX RETURNS • ALWAYS FILE A U.S. RESIDENT TAX RETURN, AS WELL AS ANY OTHER APPLICABLE STATE, CITY, OR LOCAL TAXES. • Be sure to file resident tax returns, e.g., 1040, and not a non-resident tax return! • Note that this does not necessarily mean that you must actually pay U.S. income taxes, it only means that you must file a resident tax return and declare your worldwide income on that return, even if most of this income is exempt from taxation. Consult a tax adviser where applicable. • Keep copies of all tax returns you have filed as a resident, and BRING THESE COPIES WITH YOU WHEN ENTERING THE UNITED STATES. 3. MAINTAIN A U.S. ADDRESS: • Maintain a U.S. Address, even if the address is the home of a friend or relative. • If possible, do not use "in care of" for your address. • DO NOT have a U.S. address which is a resort or hotel. • Retained full access to U.S abode 4. MAINTAIN U.S. BANK ACCOUNTS • You should leave open and continue to use U.S. Bank accounts. • For example, some employers, when assigning an employee overseas, will continue to pay the employee in U.S. dollars, depositing the amount directly into the employee's U.S. account. 5. MAINTAIN U.S. DRIVER'S LICENSE: • You should continue to RENEW your U.S. Driver's license. • Be sure that the address on your license is the same as that recorded on any immigration documents. • Carry your driver's license when entering the U.S. 6. MAINTAIN U.S. CREDIT CARD ACCOUNTS 7. OWNERSHIP OF U.S. PROPERTY • If possible, continue ownership of U.S. property, e.g., houses, condominiums, businesses, automobiles, etc. • For example, a person assigned abroad may want to rent, rather than sell, his or her U.S. residence. 8. DOCUMENT REASONS FOR LONG STAYS ABROAD • EMPLOYMENT CONTRACTS: Before leaving the U.S. on long assignments abroad, it is advisable to obtain a written employment contract, or letter, from your employer. • The contract or letter should specify the terms and length of employment. • If the employment will lead to a transfer back to the U.S., or to a U.S. based affiliate of the foreign employer, the contract or statement should include this fact. 9. SOCIAL SECURITY NUMBER • Be sure to maintain your social security card, and carry it with you on your return to the U.S. • If you have not yet done so, be sure to apply for the type of social security card which permits you to work in the U.S. 10. SELECTIVE SERVICE • For persons of applicable age, be sure to register with selective service. 11. KEEP YOUR GREEN CARD VALID: • Be sure to renew your green card when it expires. • Children who reach the age of fourteen (14) must file an application to replace their green card unless the prior card will expire before they reach age 16. 12. THINGS TO AVOID (which may unintentionally create the appearance of having abandoned the INTENTION of continuing to reside permanently in the United States): • DO NOT return to the U.S. using any form of non-immigrant visa. For exam

Carl Michael Shusterman

Carl Michael Shusterman

Posted

Good answer

Posted

I agree with my colleague. However, for issues specific toy your case, do consult an experienced immigration attorney.

Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info

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Posted

Although the law is clear as to time frames, it is the subjective determination of your intent that controls. A CBP officer will review your facts at the port of entry. You can prepare ahead of time and plead your case if necessary.

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Posted

Your information is incorrect. There is no "1-year rule". That is a myth. If you abandon the U.S. but relocating abroad and failing to maintain adequate ties with the U.S., you will lose your lawful permanent resident status. Consult a lawyer.

If you appreciate the time spent preparing this answer, kindly consider marking it BEST ANSWER or HELPFUL. Good luck to you.

Dean P. Murray
The Murray Law Firm
560 Sylvan Avenue
Englewood Cliffs, NJ 07632
T: (201)875-2600
F: (201)549-8700

Mr. Murray's response is NOT legal advice and does NOT create an attorney-client relationship. You should NOT rely on this response. Mr. Murray's response was generated without conducting a full inquiry as would occur during a face to face attorney-client consultation. It is likely that the response above may be made less accurate, or become entirely inaccurate, as you, i.e. the questioner, disclose additional facts that should only be discussed during a private consultation with an attorney. I strongly recommend that you consult an attorney who is licensed to practice law in your state (or, in the case of immigration law, and attorney in ANY state), whereupon all relevant facts will be discussed. All responses posted by Mr. Murray on Avvo.com are intended as general information for the education of the public, and not for any specific individual.

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I agree with my colleague Mr. Eichorn. You should consult an experienced immigration attorney for this matter. You may schedule a consultation with an immigration lawyer in your area, my firm is handling these matters in New York. If you would like free legal updates on these immigration issues you may sign up for our newsletter at http://www.shautsova.com .

Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes. Law Office of Alena Shautsova www.shautsova.com www.shautsova.com www.russianspeakinglawyerny.com

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