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DON'T USE YOUR GREEN CARD LIKE IT WAS
A VISITOR'S VISA
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I got my green card several years ago, but I still like my life
in the Philippines. So, I spent most of my time in the Philippines,
and go to the U.S. only for a month or two each year. The last
time I went to the States, the Immigration Officer at the airport
asked me how long I was outside the U.S., and started making a
big deal about the fact that I'm away all the time. He even wrote
something in my passport about warning me.
I have a home and business in the Philippines, my
kids are in school, and I'm just not ready to settle down in the
States. I thought that as long as I don't stay outside the U.S.
for over one year, that I won't have any problems in holding on
to my green card. Why is the INS giving me such a hard time?
Very truly yours,
GC
Dear GC:
Some people who obtain their green card treat it as though it
were a visitor's visa. They come to the U.S. for only a month
or two, but spend most of the time in the Philippines. They think
that as long as they make brief periodic trips to the U.S., or
if they do not stay outside the U.S. for over one year, they are
"safe," and will not encounter any problems with INS.
Even though a person has been granted a green card,
it is still possible that he could lose his immigration 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, a green card could be considered to be abandoned even
if a person is outside the U.S. for less than one year
when he lives and works abroad.
Recently, the INS has taken a stronger stand against
these "part-time" green card holders. INS officers at
U.S. entry points (i.e. airports) ask green card holders "How
long have you been outside the U.S. on this trip?" In the
past, the INS would not ordinarily questions you, even if you
stayed out for 11 months, as long as you did not exceed one year.
However, now, even if you are out only six months and one day,
the INS could investigate and question why you were out long,
and the INS could determine that you abandoned your green card.
There are certain steps that you can take to 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., or show that you truly intend to reside in the U.S.,
such as:
- File U.S. tax returns.
- Maintain a U.S. address (either actual or in
care of a relative in the U.S. Merely having a P.O. Box does
not show you have a residence in the U.S.)
- 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 U.S. driver's license.
- 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 account 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.
(You cannot apply for a re-entry permit when you are outside the
U.S.) 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 status.
Even if the INS believes that you have "abandoned"
your green card, under certain circumstances, 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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