If you abandon your green card, you will abandon your family’s petition

If you abandon your green card, you will abandon your family’s petition

Dear Attorney Gurfinkel:

I am a green card holder, and petitioned my wife and children. I know it will take a few years until the priority date on their petition becomes “current,” enabling them to be processed for their immigrant visas.

Would there be a problem if I move back to the Philippines to live, while waiting for the priority date to become current?

Very truly yours,

K.M.

Dear K.M:

If an immigrant (green card holder) stays outside the U.S for over one year, it could be considered that the green card holder “abandoned” his or her green card. This means he could lose his status as a green card holder. If that happens, any petition he filed that are still pending could also be abandoned.

I had one case where a father petitioned his adult single son (F-2B), but the father liked to stay in the Philippines. Although he got a “re-entry permit” (a document allowing an immigrant to stay outside the U.S for just under 2 years), he overstayed the re-entry permit by a few days. When he tried to return to the U.S, he was not allowed to board the plane.

The problem was the priority date on his son’s petition was almost current, but if the father abandoned his green card (by staying outside the U.S. too long) then the son’s petition would no longer be valid as well.

I had to fight the case all the way to Washington D.C to enable the father to return to the U.S, to keep his green card alive, so we could process the son for his green card. But imagine the stress and trauma the son was going through, thinking after he had waited so many years for his green card, because his father had almost abandoned his green card, the son’s petition may have also been abandoned.

Another problem with a petitioner living outside the U.S for too long (whether the petitioner is a U.S citizen or a green card holder) is the petitioner must be “domiciled” in the U.S., meaning they are living permanently in the U.S.  If the petitioner is living in the Philippines (and thus not domiciled in the U.S), the petitioner cannot issue an affidavit of support, which the petitioner must do in every single case, even if there is a co-sponsor.

As you can see, it is very important for a green card holder to maintain his green card status to protect any family petitions he may have filed. If you must travel, at least get a re-entry permit, and make sure you come back before it expires.

I strongly advise, however, that you seek the advice of a reputable attorney, who can analyze your situation, and advise you on the best course of action.

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