Advice: moving out of the country with GC.

[klmasters]

I have a GC through marriage to a US citizen (granted Aug 2006). I need to file to remove the conditional status in May. However we're planning to move out of the country sometime this summer (after the conditional status is removed I guess - which seems like it should be pretty straighforward). Any advice about moving out of the country on a GC? It seems like it'll be fine as long as I can argue we're not moving permanently (which I can) and we come back at least once a year (which we will to visit my husband's family here). Are there other complications I should know about?

 

[Triple Citizen]

You will not be fine if you just come back at least once a year to visit your in-laws.

It seems like it'll be fine as long as I can argue we're not moving permanently (which I can) and we come back at least once a year (which we will to visit my husband's family here).

 

[Atlanta_Brother]

Tourist visa

I have a GC through marriage to a US citizen (granted Aug 2006). I need to file to remove the conditional status in May. However we're planning to move out of the country sometime this summer (after the conditional status is removed I guess - which seems like it should be pretty straighforward). Any advice about moving out of the country on a GC? It seems like it'll be fine as long as I can argue we're not moving permanently (which I can) and we come back at least once a year (which we will to visit my husband's family here). Are there other complications I should know about?

At some point you will simply have to say bye bye to your GC. They will revoke your Green card at POE and will ask you to apply for tourist visa B1/B2 if you just need to visit US once a year to visit your in-laws. I have seen this happened to quite a few people so please make your move accordingly.

 

[klmasters]

"At some point you will simply have to say bye bye to your GC. They will revoke your Green card at POE and will ask you to apply for tourist visa B1/B2 if you just need to visit US once a year to visit your in-laws. I have seen this happened to quite a few people so please make your move accordingly."

Even if we can argue that the move is not permanent? We will likely come back at least twice a year, and can use my mother-in-laws address in the US. We may well only move for 3 years, and then come back (my husband is accepting a 3 year contract only), so I don't want to surrender my GC until I have to.... Reading the USCIS information on "responsibilities as a permanent resident" this seems fine, so I'm surprised to get two such vehement "no's" about it.

What happened to the people who lost their GCs. Did they later apply again? Apart from the hassle and the cost is there any problem with this?

FYI I don't need a visa to visit US as a tourist as I am from a visa waiver country. Does that make any difference?

 

[Triple Citizen]

You are free to interpret those responsibilities as you wish. A permanent resident is supposed to make the US his/her home. You may leave with a re-entry permit. You might be okay for 2 years provided you keep significant ties to the US. A 3 year absense with 2 visits a year will not cut it in my opinion.

Reading the USCIS information on "responsibilities as a permanent resident" this seems fine, so I'm surprised to get two such vehement "no's" about it.

Apart from cost and hassle, there should not be an issue if you both are still married and living together.

What happened to the people who lost their GCs. Did they later apply again? Apart from the hassle and the cost is there any problem with this?

That unfortunately makes no difference

FYI I don't need a visa to visit US as a tourist as I am from a visa waiver country. Does that make any difference?

 

[klmasters]

Triplecitizen - first I want to say thanks for you time and your opinion. But am I allowed to ask what it's based on? I see your disclaimer that you are not a lawyer, but your statement that "A 3 year absense with 2 visits a year will not cut it in my opinion" sounds like legal advice...

Do you have actual experience to say that this will not fly under any circumstance? I guess I don't see why we can't live outside the US for 3 years with the intention of coming back and maintain legal residency... As a student in the US I was legally resident in my home country for 5 years without actually "living" there (I was a non-resident here). What's the difference?

I honestly am grateful for your opinion. I'm just trying to understand how seriously I should take it. I am not trying to be antagonistic so please don't take this as such.

 

[Triple Citizen]

I hope my usage of "in my opinion" releases me for any legal bind. However I repeat, in my personal opinion, and personal opinion only, you will not be adhering to the requirements of maintaining permanent residency in the US. Please consult a competent attorney for a legal opinion. They spend years studying the law, whereas I have minimal information based on experience and self-research.

your statement that "A 3 year absense with 2 visits a year will not cut it in my opinion" sounds like legal advice...

I never lost my permanent residency but there are numerous documented cases where LPRs lost their status after prolonged absense from the US.

Do you have actual experience to say that this will not fly under any circumstance?

One major difference, you were a citizen of your home country. Even if you spent 25 years outside, you had a right to re-enter whenever you desire. US citizens also enjoy that right. US LPRs do not. They have to meet physical presence/domicile/residency requirements.

Again, I am not a lawyer, nor am I giving you any legal advice.
Good luck!!!

I guess I don't see why we can't live outside the US for 3 years with the intention of coming back and maintain legal residency... As a student in the US I was legally resident in my home country for 5 years without actually "living" there (I was a non-resident here). What's the difference?

 

[klmasters]

I never lost my permanent residency but there are numerous documented cases where LPRs lost their status after prolonged absense from the US.

So did you have a prolonged absence from the US while on a GC then? This statement suggests you did. What were the circumstances? How often did you come back to maintain your permanent residence?

I guess the big question here really is if I should bother to file the I-751 (to remove the conditional status). If I'm going to lose my GC anyway right away I don't want to pay the $500+ for that filing and then have to pay again to reapply (potentially only a couple of years later). I was sort of hoping I could keep it for the first 3 years because there I think it is very likely we'll move back to the US after that. Presumably if we decide to stay away more than the 3 years I would lose it then - but we'd be more permanently settled abroad so I understand that better.

 

[Triple Citizen]

I again apologise for giving you an incorrect impression. I only get 15 working days off a year and have never left the US for more than 3 weeks in my 5 years of residence

So did you have a prolonged absence from the US while on a GC then? This statement suggests you did. What were the circumstances? How often did you come back to maintain your permanent residence?

 

[TheRealCanadian]

Do you have actual experience to say that this will not fly under any circumstance? I guess I don't see why we can't live outside the US for 3 years with the intention of coming back and maintain legal residency...

The reason is that the law explicitly states that someone who has left the US for over a year is presumed to have abandoned residency unless proven otherwise, and there isn't any case law that would lead us to suggest that 3 years' absence can be overcome. You would certainly need to maintain a residence here, your spouse would probably need to live here, have a job, etc. etc.

As a student in the US I was legally resident in my home country for 5 years without actually "living" there (I was a non-resident here). What's the difference?

Students are a different case, and explicitly provided for in tax and immigration law.

Permanent Residency is granted so that you can actually live in the US. If you're not going to do this for several years, you should plan on losing your Green Card and petitioning for another one when you are ready to start living in the US again.

 

[klmasters]

The reason is that the law explicitly states that someone who has left the US for over a year is presumed to have abandoned residency unless proven otherwise, and there isn't any case law that would lead us to suggest that 3 years' absence can be overcome. You would certainly need to maintain a residence here, your spouse would probably need to live here, have a job, etc. etc.

OK - from the USCIS website:

You may be found to have abandoned your permanent resident status if you:

* Move to another country intending to live there permanently.
* Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
* Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
* Fail to file income tax returns while living outside of the US for any period.
* Declare yourself a “nonimmigrant” on your tax returns.

So if I do not "intend to move permanently", I'm never gone for more than a year in any stretch, and file tax returns as a resident I don't see the problem. Obviously proving the lack of "intent to move permanently" is the sticky point, but maintaining assets and an address in the US would seem to cover a lot of it.... Also there is the fact that my husband would only be accepting a short term (3 year) contract, he's a US citizen and all his family are here.. It's not clear yet if I would be working abroad.

Going the other way - assuming I do give up the GC. Is there a formal way to do that, or do I just wait until I want to visit the US again. Is there a problem with trying to use my GC to re-enter, and if they claim I have abandoned my status then just saying, well OK I'll come as a tourist instead? Like I mentioned I don't need a visa to visit as a tourist.

 

[TheRealCanadian]

So if I do not "intend to move permanently", I'm never gone for more than a year in any stretch, and file tax returns as a resident I don't see the problem.

Unfortunately, USCIS may, simply by the length of your absence and the fact that your spouse does not reside in the United States. Additionally, you will need to maintain a residence (not an 'address') in the United States the entire time, but even then I'm not certain that'll be enough. USCIS provides re-entry permits (and has an associated limit) for a reason.

If you're convinced it won't be a problem, then go ahead. We're not so sure, and you may be in for a rude surprise when you file your N-400 when all of your foreign trips are scrutinized.

Going the other way - assuming I do give up the GC. Is there a formal way to do that, or do I just wait until I want to visit the US again.

You file an I-407 at a US consulate abroad.

Is there a problem with trying to use my GC to re-enter, and if they claim I have abandoned my status then just saying, well OK I'll come as a tourist instead? Like I mentioned I don't need a visa to visit as a tourist.

The problem with such a strategy is that when you present your GC, you are telling the CBP officer that you are returning to the US to resume your permanent residence. That makes you inadmissible under the VWP, so you cannot turn around and change your mind and say you're intending only to stay temporarily.

 

[austriacus]

One problem with petitioning for the GC again later will be that, as far as I know, your petitioner has to be domiciled in the US to sponsor your I-864. Perhaps your husband has to come back a little ahead of you to re-establish domicile and you follow via CP or K3.

 

[boatbod]

Visiting the US is not the same as residing in the US. After your reentry permit expires, you will be expected to actually reside in the US, or relinquish your GC.

http://www.vkblaw.com/law/maintain.htm
http://www.visalaw.com/01jan4/12jan401.html
http://www.murthy.com/gco_faq.html#3

Hopefully information in the above links will convince you that your plan is flawed. After all is said and done, it is possible that you won't encounter a problem, but that doesn't mean there isn't one waiting for a PITA CBP agent to fling your way when you try to reenter the US.

 

[trialanderror83]

Triplecitizen - first I want to say thanks for you time and your opinion. But am I allowed to ask what it's based on? I see your disclaimer that you are not a lawyer, but your statement that "A 3 year absense with 2 visits a year will not cut it in my opinion" sounds like legal advice...

Do you have actual experience to say that this will not fly under any circumstance? I guess I don't see why we can't live outside the US for 3 years with the intention of coming back and maintain legal residency... As a student in the US I was legally resident in my home country for 5 years without actually "living" there (I was a non-resident here). What's the difference?

I honestly am grateful for your opinion. I'm just trying to understand how seriously I should take it. I am not trying to be antagonistic so please don't take this as such.

Klmasters,

I guess the best thing to do is apply for your I-751, get it approved, then leave the county. See what happens when you come back in 3 years.......

Good Luck....

 

[klmasters]

Wow - a flurry of advice. Thanks.

If you're convinced it won't be a problem, then go ahead. We're not so sure, and you may be in for a rude surprise when you file your N-400 when all of your foreign trips are scrutinized.

I was already assuming this would delay any application for citizenship I would make. That's a pity, but I know many LPRs in the US who never quite got around to filing for citizenship anyway. I'll cross that bridge when I come to it. Thanks for the comment though.

One problem with petitioning for the GC again later will be that, as far as I know, your petitioner has to be domiciled in the US to sponsor your I-864. Perhaps your husband has to come back a little ahead of you to re-establish domicile and you follow via CP or K3.

I don't believe this is true. I checked the website of the US Embassy in London and they say

U.S. citizens and LPRs resident in the United Kingdom may file the petition, Form I-130, with the Department of Homeland Security (Immigration) in London

So I don't think that's a concern at least. I still want to avoid having to file all that paperwork again. It was not a fun process the first time around. Although I wonder if the fact that it had previously been granted would make it smoother/quicker.

Also interesting is the terminology about LPRs resident in the UK (and this is from a US government site). Seems a bit contrary to their rules...

Anyway it seems like I should do the I-751, then apply for the re-entry permit and worry more when that expires, which gives us 2 years at least. Hopefully at that point we'll have a better idea of if we'll be moving back to the US soon, or if it will be a more permanent move abroad - and at that point I would give up my GC if that is the appropriate step. I might also have a better idea of the sorts of questions we get asked at the POE since I would have been back 4+ times in those 2 years.

Thanks again.

 

[austriacus]

klmasters,

you don't have to believe me; you can read the information yourself on this Department of State I-864 FAQ:

Can a U.S. citizen or lawful permanent resident (LPR) petitioner who is not domiciled (living) in the United States be a sponsor?

No. The law requires that sponsors be domiciled (live) in any of the States of the United States, the District of Columbia, or any territory or possession of the United States.

If the petitioner does not have a domicile in the United States, can a joint sponsor file an I-864?

No. Under the law, a joint sponsor cannot sponsor an immigrant when the petitioner does not have a domicile in the United States. The petitioner must first meet all the requirements for being a sponsor (age, domicile and citizenship) except those related to income before there can be a joint sponsor.

The issue is not whether your petitioner is eligible to file I-130. The issue is, whether your petitioner is domiciled in the United States for sponsoring your affidavit of support. If you don't need an affidavit of support (e.g. can be credited with 40 social security quarters), that's great.

Now, is it perhaps possible that your husband would be considered to have maintained domicile in the US, while you on the other hand are considered to have abandoned your permanent residence? Perhaps so; it may be possible that domicile is less restrictive in your situation. E.g. this article mentions for instance that contract work abroad may be considered temporary for purposes of having maintained domicile; however the DOS FAQ caution that domicile is determined on a case by case basis. But I would assume generally, although I have no proof, that for married people that the petitioning spouse's loss of domicile and the immigrant's abandonment of permanent residency would go hand in hand.

Good luck!

 

[TheRealCanadian]

I was already assuming this would delay any application for citizenship I would make.

That's not what I was alluding to. Section 7C of the N-400 requires you to list all time you have spent outside the United States since becoming a Permanent Resident. You will need to list your 3-year absence, and there is the risk that not only will your N400 be denied, but that the examiner could determine that you abandoned permanent residency.

I understand that you want to cross that bridge when you come to it, but this particularly journey does not allow you to go backwards if you take a wrong turn.

Also interesting is the terminology about LPRs resident in the UK (and this is from a US government site). Seems a bit contrary to their rules...

As an LPR, you are allowed to be temporarily resident outside the US, providing you also have ties to the US. No one's questioning that, only that USCIS is unlikely to consider your situation to be a temporary absence.

 

[boatbod]

As an LPR, you are allowed to be temporarily resident outside the US, providing you also have ties to the US. No one's questioning that, only that USCIS is unlikely to consider your situation to be a temporary absence.

The USCIS test for a trip to be "temporary" in nature, requires the person taking the trip to be able to prove knowledge of their return date prior to departure. This doesn't have to be absolute and set in stone, but it definitely can't involve anything open ended.

As far as citizenship is concerned, these trips will undoubtedly break continuous residence, so you are looking at a minimum of 2yr+1day wait upon your return to the US. (Assuming you are applying based on marriage to a USC)

 

[rick92]

KLMASTERS

If you are going to take the time to remove the conditions with a I 751 and go for the LPR you might as well file for the N 400 right away but then again even if you were to become a US citizen right away.... conditions apply after citizenship. Good luck with your decisions. But if I may, try not lose your GC, remember the US is your first best hope NOT your last best hope.

N 400 (NYC DO)
FP Done & Cleared - 2/19/08