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?
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;
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.
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
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.
Real Estate Attorney
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
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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 .
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