A GREEN CARD IS NOT A VISITOR'S VISA

by Michael J. Gurfinkel, Esq.

Dear Atty. Gurfinkel:

I got my green card from my mother's petition last year. However, I have a growing business in the Philippines that I have to attend to from time to time. Therefore, I have to go back and forth to the Philippines, sometimes for long periods of time. Will this jeopardize my green card? What do I need to do to preserve my green card status?

R. R.

Dear R. R.:

Many people who obtain their green card sometimes treat it as though it were a visitor's visa: They come to the U.S. for a month or two, but spend most of their time in the Philippines.

Even though a person has been granted a green card, it is still possible that he could lose his green card status, or be considered to have "abandoned" that green card, if he stays outside the U.S. too long. The INS takes the position that if a green card holder stays outside the U.S. continuously for more than one year, it is considered as though that person has abandoned his immigrant status (being a green card holder). In fact, being a green card holder could be considered to be abandoned even if a person is outside of the U.S. for less than one year, if he lives and works outside of the U.S.

The INS has taken a stronger stand against these "part-time" green card holders. INS officers at U.S. entry points (i.e. airports) may start questioning green card holders who have been out of the U.S. for more than six months. (Before, the INS would usually not question a green card holder even if he stayed out for 11 months, as long as the person did not exceed one year. However, now, even if a person is out only six months and one day, the INS may investigate why you were out too long.

There are certain actions or steps that you can take to help ensure that you retain your immigrant status, if you are planning to stay temporarily out of the U.S. One of the most important things you should do is to maintain evidence or proof of your residence in the U.S., such as:

• File U.S. tax returns
  
• Maintain a U.S. address
  
• Make sure you enter the U.S. at least once a year, although the more often you enter and stay in the U.S., the better it is for you.
  
• Maintain a valid driver's license or I.D. issued by a State Department of Motor Vehicles
• Keep U.S. stocks and bonds
• Continue to use U.S. credit cards
• Continue any club memberships in the U.S.
• In any correspondence, make reference to your temporary assignment abroad
• Maintain bank accounts in the U.S.
• If you file a tax return in another country, make sure that you indicate your residence is the U.S. (Many immigrants abroad are told by accountants that they can avoid paying U.S. taxes by stating that they are not residing in the U.S. However, this attempt at tax savings would directly contradict your status as a "permanent resident" of the U.S., and could affect or jeopardize your immigration status.)

Another thing that you can do to "protect" your immigrant (green card) status is to apply for a "re-entry permit" while you are in the U.S. and before you go abroad. This re-entry permit allows a green card holder to remain outside the U.S. for up to two years, without being considered to have abandoned his immigrant (green card) status. However, this application must be filed while standing on U.S. soil (i.e. before leaving the U.S.).

Even if the INS believes that you have "abandoned" your green card, under certain circumstance, with a proper presentation of appropriate evidence and other documentation, it is possible to overcome INS' presumption of abandonment of your green card. However, each case is different, and would need to be considered on a case-by-case basis.

If you have any questions or problems in this area, I would recommend seeking the advice of a reputable attorney, who can analyze your (or your relative's) situation and advise you of the appropriate course of action to take or preserve your green card.