180 days absence, please explain. Thanks

T

TungFong

Registered Users (C)
Hello my friends,

It has been a long time since I last posted on this board. I recently check back and found that people here refers to the 180 days away from US to be the limits for Green card holders. I check the INS (UCIS or whatever they are called now) website and it still list 1 year as the limit.

I dunno if I'm looking at the right thing or old post. Could someone please point out to me where is it listed this 180 days limit.

Thanks.

Tung Fong
 
TungFong said:
I dunno if I'm looking at the right thing or old post. Could someone please point out to me where is it listed this 180 days limit.
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The 180 days comes from something slightly different. If you are returning to the US after an absence of less than 180 days, you are NOT seeking admission. That's an important distinction - it means you are automatically assumed to be able to enter, and the usual grounds of health and public charge inadmissibility do not apply to you. You are also presumed to have retained residency. After 1 year, you are assumed to have given up residency without a re-entry permit.

Between 180 and 365 days, it's sort of in the middle. If CBP wishes to deny you entry by claiming you have abandoned residency without proof, they can do so - and you will need to prove otherwise.

That's why it's better to stay outside for less than 180 days, plus (and others will correct me here if I'm wrong) an absence of 180 days or more resets the 5 years' continuous residency clock for naturalization.
 
TheRealCanadian said:
Between 180 and 365 days, it's sort of in the middle. If CBP wishes to deny you entry by claiming you have abandoned residency without proof, they can do so - and you will need to prove otherwise.
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I think it's wrong interpretation. The requirement of proof that the person did not abandoned PR status is no different between these two cases -
1. staying less than 180 days
2. staying between 180 to 364 days.

CBP can deny entry even if the person was absent for less than 180 days.
180 days issue is a continuous residency requirement for naturalization. On the issue of abandoning PR status, absense of 179 days is no different from absense of 181 days. Only difference is that later one resets continuous residency period, where the former one doesn't.
 
http://uscis.gov/lpBin/lpext.dll/in...templates&fn=document-frame.htm#slb-act101a27 explains why it does matter whether or not a resident alien is returning within 180 days of his/her departure from the US. This is independent of the requirements for citizenship. Here is the relevant part:

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-

(ii) has been absent from the United States for a continuous period in excess of 180 days,​

When you seek admission, you can be turned away even if you are a bona fide permanent resident. TheRealCanadian had alluded to two reasons why you may not be permitted to enter the US, viz., grounds of health and public charge.
 
If a PR cannot be turned away if he/she was absent less than 180 days, then anyone could retain his/her PR status by living abroad and visiting USA on every 6 months.
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Neither TheRealCanadian not I ever claimed that all one has to do to retain his/her permanent residency is visit the US once every six months. All we have claimed is that there is a difference between returning within 180 days and returning after 180 days but within a year. In the former case, one need only establish that one is still a permanent resident whereas in the latter case, one has to also establish that one is healthy, will not become a public charge, etc.
 
C R S said:
All we have claimed is that there is a difference between returning within 180 days and returning after 180 days but within a year. In the former case, one need only establish that one is still a permanent resident whereas in the latter case, one has to also establish that one is healthy, will not become a public charge, etc.
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Yes, there is a difference between returing within 180 days and after 180 days and the definition of "admission" ( also "continuous residency") creates that difference. But I don't see why it has to be tied to abandonment of residency. TheRealCanadian's following statement clearly does that.

TheRealCanadian said:
Between 180 and 365 days, it's sort of in the middle. If CBP wishes to deny you entry by claiming you have abandoned residency without proof, they can do so - and you will need to prove otherwise.
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Agreed... that particular claim does appear to stretch the limits. However, I have seen similar sentiments expressed by some lawyers on their web-sites. Here's my crude attempt to summarize their views:

  1. Don't leave the U.S. until you are naturalized. :)
  2. If you must leave, try to make your trip as short as possible.
  3. At the very least try to be back before 180 days.
  4. If you are returning after being gone for more than 180 days, expect a lot of scrutiny and expect to have to prove that you have not abandoned your residency.
 
C R S said:
Agreed... that particular claim does appear to stretch the limits. However, I have seen similar sentiments expressed by some lawyers on their web-sites. Here's my crude attempt to summarize their views:

  1. Don't leave the U.S. until you are naturalized. :)
  2. If you must leave, try to make your trip as short as possible.
  3. At the very least try to be back before 180 days.
  4. If you are returning after being gone for more than 180 days, expect a lot of scrutiny and expect to have to prove that you have not abandoned your residency.
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I believe that's a good thumb rule. But I don't think the number 180 is a magic or threshold number that will put a person either right side or wrong side of the fence - depending on whether the person is absent less or more than that number. That's why earlier I mentioned 2 days of difference (179 days against 181 days) does not make any difference to prove PR status.
 
During my naturalization interview, the only trip the officer asked questions about was the one over 6 months/180 days (the trip lasted under one year and I had a re-entry permit). I was requested to show proof of what I had done during the trip....in my case I did my senior year in high school abroad.

On another note, the USCIS website indicates that any length of stay abroad may be considered when determining whether a person may have abandoned their PR status.
 
pralay said:
That's why earlier I mentioned 2 days of difference (179 days against 181 days) does not make any difference to prove PR status.
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Interesting discussion, everyone! Pralay, I think your point about merely visiting every 180 days can be addressed in subsection (i) of the link CRS provided. If you are merely visiting, you have abandoned your status.

I believe that the fact that you are not "seeking admission" is very important, but I suspect that you may be right that 180 days doesn't have magic significance when it comes to retaining residency on its own. However, there are risks when it comes to public charge and health, especially if you have been absent for several months and no longer have a US job.

I suspect where residency comes into play is that once you've been away for 180 days and are seeking admission, anything is fair game to a CBP inspector who doesn't like you, and if he or she can dig around regarding your admissibility - why not residency?
 
Thank you

My Friends,

Thanks for all your replies and insights. All responses makes good sense (since one of you guys stayed at a holiday inn). l guess l'll haul my ass back to the states by end of this month after hanging out way too long in asia and europe. FYI, I left on Jan 28th and hope to return by June 30, hence, I guess I'll be safe.....

All the best my friends.

Tung Fong
 
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How does CBP know the day i left the country? Last month i went out of the country (first time after getting GC) and it looked like to me that no one recorded my exit date.
 
rpranesh said:
How does CBP know the day i left the country? Last month i went out of the country (first time after getting GC) and it looked like to me that no one recorded my exit date.
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------------ you got arrival stamp in your passport at airport in your home country the CBP officer can check that. and they have record who enters US and who departs US
 
I'm still not convinced how CIS track departure date

Before PR, people has to use I-94 on both entry and departure. It's was how CIS track the dates.

But for PR, even CIS has access to airline record, but I don't think you have to provide greencard number to airline for your departure flights. You only provide them passport most. It could be a hasle for CIS to match each departing passenger's passport number for possible PRs, given the fact that a person's passport (non-US) could be changed independently from one's greencard.
 
frank77 said:
Before PR, people has to use I-94 on both entry and departure. It's was how CIS track the dates.

But for PR, even CIS has access to airline record, but I don't think you have to provide greencard number to airline for your departure flights. You only provide them passport most. It could be a hasle for CIS to match each departing passenger's passport number for possible PRs, given the fact that a person's passport (non-US) could be changed independently from one's greencard.
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I have no idea what kind of sophistication CBP has in their database and how good they are in tracking departures/arrivals for every LPR - especially when I people getting into no-fly list randomly on-and-off, including MA senator Ted Kennedy. But if CBP wants to find out records for a particular person I don't think it's too difficult. Most of the cases (atleast for PRs) a person leaves USA and enters USA with same passport (unless he/she changes passport abroad) - most probably same airline and same airport. That narrows down the number significantly. In addition, traveling pattern, nationality(or nationalities) etc can narrow down farther.
They are definitely not 100% accurate and I don't think they intend to track LPRs with 100% accuracy. But they do catch some fishes sometimes.
 
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Well, from my experience (both after 9-11), it was one time when officer at POE in MSP writed in my passport "absent 4 months " and one time when I was out actually 182 days in Seattle wrote nothing. So it really depends. I remember that by IRS non-resident considered person who was absent more when 9 months a year , do not remember source, unfortnately. I think all enters now easy to monitor, about exits, if you do not have stamps, it will come only if you arise suspition in some other ways, this tracking is not that simple.
 
i have a friend who lives abroad for several years now but he still maintains his permanent residence by simply coming once a year for a few days. (he insists that he personally knows at least five people who've been doing the same).
It seems very different from what i see in this thread.
i'll ask him next time i speak to him, but do you have any idea what might be different in his case?
 
KWieck said:
i have a friend who lives abroad for several years now but he still maintains his permanent residence by simply coming once a year for a few days. (he insists that he personally knows at least five people who've been doing the same).
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Visiting once a year is not enough to maintain LPR status. Immigrant visa (i.e green card) should not be used for non-immigration purpose (i.e visiting). He and other five guys didn't get caught does not mean that's OK to do it. I know plenty of people, including me, who drive over legal speed limit almost everyday. That's does not mean we are doing OK.


KWieck said:
i'll ask him next time i speak to him, but do you have any idea what might be different in his case?
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There are some exceptions. For example, working in military stationed abroad or working for US govt (e.g. as consulate/embassy employee). Otherwise, it's very unlikely your friend meets the criteria of being exception. Of course, if he has re-entry permit, that's a different issue. If not, your friend is basically using the loophole.
 
Update on my situation

Hello Friends,

Thanks for all the advice, info and data posted. I truelly appreciate all of them.

I'm finally back in the US. All the Officer ask was for how long I've been gone. I told him approx 5 months. He then stamped my passport with a Dept Homeland security stamp with the date of entry. There is no indication on how long I have been gone. Though he may have entered that into the computer.

Just like to pass this along.

Sincerely,

TungFong
 
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