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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.
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