GC holder wants to come back U.S. after leaving U.S. more than a year

[ah6511]

Hi,

My parents have GC and they left U.S. more than a year ago and now they want to come back to U.S., my question is if they come back, what the chance are the INS officer will find out they left U.S. more than a year even if they have a new passport that doesn't show when they entered their original country more than a year ago. Thx in advance.

-Andy

[equate]

Their new passport is irrelevant. Your parents will be asked when they last departed the country and they should tell the truth.

[ah6511]

What if they tell the truth which is their health prevented them come back in 6 months? Will they be sent back, which will be disaster for my parents because they are almost 80 year old.

[equate]

If it was for a medical reason, they would have a good case. Your parents might even be eligible for returning resident visa, which is issued by a US embassy. The visa will guarantee they will face no problems at POE.

Without visa, they might or might not be allowed in. If your parents get denied the entrance at POE, they have two choices. They can fly back to their own country or as green card holders, they are eligible to appeal before an immigration judge. However, waiting for the appeals might be too much for your parents while detained at a detention center. They might be allowed to post bond and be released, since your parents are so old but that's not certain.

[vettipuls]

Equate,

I am a GC holder planning to go back to India and work there. I am planning to apply for my 2 year re-entry permit before I leave. I plan on coming once a year for the next 2 years and then apply for a 2nd re-entry permit. Is this enough to preserve my PR status?

Note: I am not worried about the citizenship, so don't care much for the continous presence rule.

Thanks for the help.

Originally Posted by equate

If it was for a medical reason, they would have a good case. Your parents might even be eligible for returning resident visa, which is issued by a US embassy. The visa will guarantee they will face no problems at POE.

Without visa, they might or might not be allowed in. If your parents get denied the entrance at POE, they have two choices. They can fly back to their own country or as green card holders, they are eligible to appeal before an immigration judge. However, waiting for the appeals might be too much for your parents while detained at a detention center. They might be allowed to post bond and be released, since your parents are so old but that's not certain.

[equate]

That's what the re-entry permit is for. It allows you to re-enter the US for next 2 years as long as you have it in your hands. And make sure to file tax return every year and your filing status should never be as "non-resident."

[pianoplayer]

Originally Posted by equate

That's what the re-entry permit is for. It allows you to re-enter the US for next 2 years as long as you have it in your hands. And make sure to file tax return every year and your filing status should never be as "non-resident."

Hi:

I am curious about your recommendation. Have you examined recent case law on the issue of abandonment? It is far more complicated than just keeping a re-entry permit and filing taxes. The poster needs to see an immigration lawyer, specializing in abandonment issues, before proceeding.

[equate]

Originally Posted by pianoplayer

Hi:
I am curious about your recommendation. Have you examined recent case law on the issue of abandonment? It is far more complicated than just keeping a re-entry permit and filing taxes. The poster needs to see an immigration lawyer, specializing in abandonment issues, before proceeding.

The residence issue will definitely come up he files for US citizenship. However, he already stated that the citizenship is not of a concern. His only issue is getting back into US, and the re-entry permit will allow that.

[pianoplayer]

Originally Posted by equate

The residence issue will definitely come up he files for US citizenship. However, he already stated that the citizenship is not of a concern. His only issue is getting back into US, and the re-entry permit will allow that.

Hi:

I was not referring to citizenship. A GC and a REP do not guarantee entry to the US. Even if you have only been gone for 4 months, and e.g. return to visit a friend (with a GC and REP), it is possible for the officer to determine that you have abandoned your status given the weight of the evidence.

A REP is useful when you have a VALID REASON that accompanies it e.g. tending after a sick parent, going on a cruise around the world are the cliche examples. However, if someone takes a REP, closes most of his US bank accounts, sells his house, buys property in India, sets up accounts there etc. etc., an officer may very well determine upon a subsequent visit that he abandoned permanent residence (even if the person filed taxes and has a GC/REP).

Unfortunately, case law indicates that it is not as easy as just following some basic requirements e.g. file REP, pay taxes, you're fine. Think of it this way - the GC is intended for you to reside permanently in the US, with all absences being temporary. A REP provides documentation for a longer, but TEMPORARY absence. If at any time, even before the REP expires, the weight of the evidence indicates that your absence is no longer temporary and that you are RESIDING abroad, you may have abandoned status.

Of course, if the POE officer determines that, all GC holders have a right to appear in front of an immigration judge. But the person's chances of success will be much better if he has properly preserved status.

Again, the poster should contact an immigration attorney who specializes in abandonment cases. It is a fairly tricky area of immigration law and many immigration lawyers do not touch it.

[byegeorge]

Pianoplayer:

What case law are you reffering to? I know of no case where a person with valid GC AND REP was denied entry at the POE becasue the officer felt they abandoned thier residence. The whole point of REP is to show that residence was not abandoned.

Also there is absolutely nothing wrong in taking up residence abroad as long as you have a valid REP. Don't beleive me? Just read the first paragraph of this official document from USCIS http://www.uscis.gov/files/article/B5.pdf

[ah6511]

I talked to one immigrantion lawer, she said my parents, who have GC and left U.S. more than a year ago without applying REP, could try to come back to U.S.as long as they can provide following when they enter the port:
1) notarized documents that shows what prevented them coming back to U.S. in time (in this case, my parents had a heart disease and operation)
2) documents that shows they are still tied to the U.S. such as they have continuous tax filing, bank account, all the children are in U.S.
So it seems to me that applying SB-1 visa is not the only way for returning to the U.S. for people like my parents. They should be able to come back to U.S. directly with all the necessary documents, according this lawer.
The reason I ask is since my parents are old and they want to avoid unnecesary procedure, such as applying SB-1 visa, if possible.
Anybody thinks this approach has any risk that will cause my parents not being allowed entering U.S. at the port?

[TheRealCanadian]

Originally Posted by ah6511

Anybody thinks this approach has any risk that will cause my parents not being allowed entering U.S. at the port?

Sure there's risk, since the onus is on your parents to demonstrate that they have not abandoned residency, and it's up to the individual POE to let them in. Additionally, since they are seeking admission, there is the possibility that they could be denied on health or public charge grounds.

[pianoplayer]

Originally Posted by byegeorge

Pianoplayer:

What case law are you reffering to? I know of no case where a person with valid GC AND REP was denied entry at the POE becasue the officer felt they abandoned thier residence. The whole point of REP is to show that residence was not abandoned.

Also there is absolutely nothing wrong in taking up residence abroad as long as you have a valid REP. Don't beleive me? Just read the first paragraph of this official document from USCIS http://www.uscis.gov/files/article/B5.pdf

Hi:

There is a whole body of case law that deals with abandonment issues ---- if you have access to Westlaw or LexisNexis, you can research for yourself. I do not have time to pull cites for you.

I fear you misunderstand what taking up residence means. Of course one is able to buy a house/condo overseas ----- taking up residence has a particular legal connotation. If you take up residence abroad, i.e. become domiciled there, a REP will not help you.

That is my free commentary. If you wish to get a formal legal opinion, see an attorney, who specializes in abandonment issues, and pay the hourly fee.

[byegeorge]

This issue has been discussed on this forum and the following is perhaps one of the more extensive threads:

http://boards.immigration.com/showthread.php?t=199778

In particular the postings by wurzbach (#8 and #10) reflect my understanding on the REP:

1) There has never been a case when a person was found to have abandoned thier residence while in possession of a valid REP.
2) There have been cases when people have been found to have abandoned their residence even though they may have used an REP before but that REP was expired at the time of entry.
3) While the REP and GC are not a guarantee for reentry, the possiblity of being found to have abandoned ones' residence is very very small if one is in possession of these documents AND they are valid.

[pianoplayer]

Originally Posted by byegeorge

This issue has been discussed on this forum and the following is perhaps one of the more extensive threads:

http://boards.immigration.com/showthread.php?t=199778

In particular the postings by wurzbach (#8 and #10) reflect my understanding on the REP:

1) There has never been a case when a person was found to have abandoned thier residence while in possession of a valid REP.
2) There have been cases when people have been found to have abandoned their residence even though they may have used an REP before but that REP was expired at the time of entry.
3) While the REP and GC are not a guarantee for reentry, the possiblity of being found to have abandoned ones' residence is very very small if one is in possession of these documents AND they are valid.

Hi:

#2 and #3 are correct. #1 is not correct --- first, I am aware of a case that rose to the 9th Circuit - unfortunately cannot remember the name right now and don't have time to research it. Second, it would be impossible to even make a statement like that, since many cases in front of immigration judges are never reported in a case reporter. If the case rose to an appellate court, e.g. in the case I am thinking of, there would almost definitely be a published opinion.

[byegeorge]

Pianoplayer:
I am curious about the Ninth circurt court case you refer to. I have been unable to find it on Lexis-Nexis nor do any of the lawyers I talked to knew about it. If you have the details, do share.