I never said or implied that the issuance of an REP requires you to stay abroad for an extended period. That is non-sense. What I find contradictory in Mr. Gotcher’s statement is that he implies that with the REP one can stay outside the country for upto two years but the trip itself cannot be of an extended period. Most people would characterize a two year absence as an extended absence.
My main objection is the interpretation that the REP only acts to extend the allowed absence for a GC holder from one year to two. It certainly does that, but more importantly it is proof that the holder of the REP never intended to abandon their residence. I have already given you the explicit language of the FAM (
http://foia.state.gov/masterdocs/09FAM/0942022N.PDF) which says exactly that (9 FAM 42.22 N2.2 LPR Possessing Valid Reentry Permit).
Also note that under certain circumstances the USCIS issues REPs that are valid for only one year. That is, if you have already been issued an REP twice previously, your third one will only be valid for one year. In such a case, the interpretation that REP allows one to stay abroad for more than a year is no longer valid but rather that the absence of less than a year is presumed have been temporary and the holder never intended to abandon their U.S. residence.
Furthermore the back of the REP and the 8 CFR clearly imply that the holder of the REP is an individual that is returning from temporary overseas trip. Nowhere is it stated that reentry permit is simply extending the period of one’s allowed absence. By issuing the REP, the government is basically saying to the REP holder that that upon your return we will consider your trip to have been of a temporary nature. Since the trip was a “pre-authorized” temporary trip, the government assumes that you never intended to abandon your LPR status. Under this scenario, the question of physical ties never can arise and the its up to the individual if they want to maintain a house, car, boat, lover and a dog for the period they are away (whether it is 23 days or 23 months, it does not matter.) There is nothing in the law to suggest that one has to maintain such ties while on a REP.
Now, you ask well why wouldn’t anyone want to maintain ties, especially physical ones? There are number of scenarios, consider
1) The beneficiary of the DV lottery initially comes to the U.S., applies for an REP and leaves soon after. There may be many reasons for them to return (for example, their kids are benefiting from a good and free education at home which will take another two years to finish). Under this case, the REP holder does not have any ties to the U.S. (after all they never lived here), but that does not disadvantage them when they show up two years down the road with their REP.
2) A person gets transferred by their company to its overseas operation or they get hired by a foreign company to work overseas. The employer pays for all relocation expenses and promises to relocate the employee back at the end of the contract. This individual decides to sell their house and ship all their belongings, in which case they also end up having no physical ties with the U.S. They may continue to maintain a bank account and credit card, but that is the extent of their ties to the U.S. Since they will be returning back on an REP, they can be confident that they cannot be accused of abandonment.
Of course in both these scenarios, I am assuming that the intention of both such individuals is to return to the U.S. at the end of the two year validity of the REP and the application for the REP was made in good faith. Furthermore, I am assuming that they will pay taxes—the only specific requirement in the law even if one has an REP. The REP is issued only to those individuals if the government is convinced that the applicant will not abandon their LPR.
Recall from my earlier post the example of the individual where the INS issued the REP even though they knew very well that the applicant would not maintain their physical ties. In fact that case sets the precedence for all those who want to completely pack up and leave for two years and later return on an REP. I submit to you that it will be nearly impossible for any POE officer to accuse one of abandonment even if they knew that the holder has no physical ties. Again, I have yet to hear of a single case where people’s green cards are taken away even though they enter on a valid REP.
Finally to JoeF, you can believe whoever you like. I, for one, have done my own research on this issue including consulting with (pricey) lawyers myself. I don’t claim that I have found a definitive answer and that is why I had posted my comment to seek further insights from others who may have experiences to share. This area of immigration law is admittedly murky, so let’s try to get the most correct, updated and complete information that all can benefit from.
