I understand she may have trouble with immigration when she returns to CA. We spoke with the embassy here in Indonesia and she was denied a tourist visa as we thought she had to surrender green card. We were referred to Homeland Security in Jakarta. If she wants to live in Asia part of the year and the US part of the year what are her options? she does not want to apply for US citizenship. Since she is married to a US citizen I was assuming she would be able to live in the US part of the year with no problem. Appreciate any information as this has become a challenge.
Residence, for immigration purposes, is a question of your intent when you depart the country. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States. Problems arise, however, because the U.S. Citizenship and Immigration Services (USCIS) will try to judge your intention by the way you act.
As a general rule, if you have a green card and leave the United States for more than one year, you may have a difficult time reentering the country. That is because the USCIS feels an absence of longer than one year indicates a possible abandonment of U.S. residence. Even if you do return before one year is up, you may run into trouble. To avoid a full-scale inspection, you should return within six months.
It is a common misconception that to keep your green card all you need to do is enter the United States at least once a year. The fact is that if you ever leave with the intention of making some other country your permanent home, you give up your U.S. residency when you go. Once again, the USCIS will look to your behavior for signals that your real place of residence is not the United States.
On the other hand, remaining outside the United State for more than one year does not mean you have automatically given up your green card.
Reentry permits are for people who hold green cards and know in advance that they must be outside the United States for more than one year. Under such circumstances, the USCIS can allow you to stay away for up to two years. You should apply for this privilege before leaving. If the application is approved, a reentry permit will be issued. The permit will help you prove that your absence from the United States is not an abandonment of residence. It also serves as an entry document when you are ready to return.
If you stay outside the United States for more than one year and do not get a reentry permit before leaving, you must apply at a U.S. consulate abroad for a special immigrant visa as a returning resident. To get this visa you must convince the consular officer that your absence from the United States has been temporary and you never planned to abandon your U.S. residence.
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If she remains outside the US for more than 6 months there is a rebuttable presumption she abandoned her green card. There are certain things that can be done to protect her such as obtaining an advance parole document. I suggest you speak with an immigration attorney. For a free consultation give me a call.
Once her stay outside of the US reached one year, she abandoned her permanent residence, unless there was a good reason.
You would have to re-apply for her permanent residence again, and next time she wants to stay outside for more than a year, apply for a re-entry permit.
Let me know if you have any questions.
Attorney at Law & CPA
Law Offices of Rehan Alimohammad, PC
Houston Office: 281-340-2074
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