Returning back to India for fmaily reasons - need suggestions. Please help

[desi74]

One of my closest friends who is not very comfortable with English is planning to do the following.

By the end of 2005, it will be exactly one and half year since his 485-application was approved. His Parents are getting old and he has to go back to India to live with them no matter what. Is it OK if he leaves by Jan 2006 and then keeps coming back every 6 months for next 2 years. He has a home here in USA and he is planning to rent the home while he will be gone. At the end of two years, he plans to come back to USA as his brother and sister will move back to India. He will stay in USA thereafter and go for naturalization upon eligibility.

He is planning to go by this route because technically speaking, his residency clock will not be disturbed since he will be returning back to USA every 6th month (before the end of 6th month).

The only problem is that would Immigration People allow him to enter every 6th month 3 times in a row? Keep in mind that he will stay only for 2 weeks in USA and will return back to India but he will not buy a return ticket from India. He will buy one way tickets every time. He will file taxes in USA every year as a permanent resident and would also keep his home here in USA. Would that help?

Upon questioning by the immigration people at the airport, he intends to tell them the truth that he has no plan to abandon his permanent resident ship whatsoever and the only reason he is traveling back and forth is because he has old parents. However, he has no idea how to explain it to immigration officer that for how long he intends to do this? Should he tell them that he will do it for 2 years until his brother will come back or should he tell them some other story such as winding the business? Did anyone of the guppies try entering to USA every 6th month for at least 3 times in a row? If so, how was the experience?

Please tell me if it is Ok for him to do his. I know there is no safe way except staying in USA for continuous 5-years to get the citizenship but if some one has to take a calculated risk, how about doing it this way? Experienced gurus, please provide suggestions. And no, he does not want a re-entry permit because it will set his residency clock back to zero and no he cannot get N-470 either.
Thanks again

 

[pralay]

OIs it OK if he leaves by Jan 2006 and then keeps coming back every 6 months for next 2 years.

Normally for this kind of scenario, its better to apply and use re-entry permit.

 

[desi74]

Caring for elderly parents is a perfectly good reason for a reentry permit. Having a reentry permit will also help when questioned about returning every 6 months.
The reentry permit does not reset the residency clock. That rumor is wrong. A stay abroad for over 6 months, reentry permit or not, is what will reset the residency clock.

hmmm....that is a totally new information to me and also a very important one .....can anyone verify this please. what it means that one can have a re-entry permit and he/she can keep coming back every 6 months for a 2-year period without having the residency clock being set back to zero??

Please provide your suggestions....

 

[desi74]

Normally for this kind of scenario, its better to apply and use re-entry permit.

but dont you think that getting a reentry permit would autommatically set the residency clock back to zero and the 2-year period (re-entry permit time period) would not be counted towrads naturalization.......

 

[TheRealCanadian]

but dont you think that getting a reentry permit would autommatically set the residency clock back to zero and the 2-year period (re-entry permit time period) would not be counted towrads naturalization.......

My understanding is that the residency permit allows you to stay abroad for over a year, but you don't have to. Resetting the naturalization clock is based on what you DO do, not what you CAN do. I may get a re-entry permit that lets me stay outside the US for up to 2 years, which would reset the clock. However, I only stay away 90 days. My clock is obviously not reset.

 

[desi74]

So it appears to me that the experienced members have a consensus on the issue related to the re-entry permit and the residency clock being set back to zero. In essence, if one has a re-entry permit for a 2-year period and during that period if he/she keeps coming back every 6th month, most probably, his residency clock will not be set back to zero and those 2 years will be counted towards his naturalization time. .

One may argue, and understandably so, that why we need a re-entry permit in that case because we can always come back after 6 months by showing our green card. Based on the information gathered by your replies, my answer would be that a re-entry permit would facilitate/ease the entry process into USA at the immigration desk. Without a re-entry permit, one has to face a lot of critical questions by the immigration officer as to why he/she keeps coming back and forth every 6th month and that for how long he/she intends to follow such a weird pattern (coming back and forth to USA)? With a re-entry permit, “hopefully”, it will be little easier to answer such questions. Again the emphasis is on the word “hopefully” as these days no one can predict the immigration officer’s attitude accurately.

Please correct me if I am wrong in any of my afore-mentioned interpretations.

(Rest assured, I totally understand that all of this information will be verified by consulting an immigration lawyer. However, such pre-disaster discussions at this board always help in educating yourself and trust me sometimes also help educating some immigration lawyers ( especially if he is a Gora immigration lawyer. They hardly know anything about immigration).

 

[Participant]

In 131 application form it mentions:
under Rentry permit:
'With the exception of having to obtain a returning resident visa abroad,a rentry permit DOES NOT relieve you of any OF the REQUIREMENTS
of US immigration laws'.
--1)If one stays above 1 year out of US,he looses to be LPR and REP ONLY protects this and nothing else.All other conditions to remain as LPR, STILL HOLDS GOOD.(see CIS doc. how to maintain... LPR.).
2)if some one is coming before every six monnths CBP may not consider your REP even if you present it may be due as they KNOW only above one year rule.In this case it becomes useless or redundant.(SimplyBecause he has not broken his LPR status,provided he meets all other LPR conditions)
3)Only hypthesis in above messages is,in abscence of REP, CBP agent may not question why he is coming every 6 months and soundness of his claiming an LPR status.But again the basic purpose of REP is only to repalce the SB1 visa and this is what CBP knows but not the intent of applicant,about not abandoning PR, can be proved .Do they go beyond that or botherand how far they buy REP based logic?is very doubtful.
So it may not be of help in this case.

 

[pralay]

I
3)Only hypthesis in above messages is,in abscence of REP, CBP agent may not question why he is coming every 6 months and soundness of his claiming an LPR status.

Yes, entry becomes easier for this situation. I know a person who had renetry permit. When he was traveling frequently, POE officers asked no question about his abroad stay and duration til his REP was valid.

 

[Participant]

Yes, entry becomes easier for this situation. I know a person who had renetry permit. When he was traveling frequently, POE officers asked no question about his abroad stay and duration til his REP was valid.

that person was lucky with CBP,indeed.

 

[Participant]

(Rest assured, I totally understand that all of this information will be verified by consulting an immigration lawyer.).

Please post your lawyer's version here when you get a chance.

 

[pralay]

that person was lucky with CBP,indeed.

No, he did not need luck, because his absense was clearly temporary in nature. His employer relocated him to India for two years to setup their new office.

 

[desi74]

3)Only hypthesis in above messages is,in abscence of REP, CBP agent may not question why he is coming every 6 months and soundness of his claiming an LPR status.

Ok I am really confused now. Your message is saying that in absence of REP, CBP agent will not question why he is coming every 6 months....we all thought the other way around.......is there any typo in your message?I thought that in absence of REP, the immigration officer will ask questions as of why you are coming back and forth every 6 months........Please clarify

 

[Participant]

Ok I am really confused now. Your message is saying that in absence of REP, CBP agent will not question why he is coming every 6 months....we all thought the other way around.......is there any typo in your message?I thought that in absence of REP, the immigration officer will ask questions as of why you are coming back and forth every 6 months........Please clarify

I only pointed out the purpose of reentry permit as envisaged by CIS is:
'With the exception of having to obtain a returning resident visa abroad,a rentry permit DOES NOT relieve you of any OF the REQUIREMENTS
of US immigration laws' .
That is, when some body is abroad for more than year,
the LPR can be admitted with out any problems/questions on this front only.

My understanding was that,in CBP view having REP does not have much influence when some body returning before every six months and meeting all other conditionsof LPR.
In other sense,having REP for this purpose is not a material when CBP agent decides whether the person should be allowed when he returns before 6 months for many times consecutively.
But pralay posted the REP helped(is material)for admittance, when the guy returned many times with six months duration of abscence.( I guess from pralay postings)

 

[Participant]

Well, the stay abroad still has to be temporary, and all the other requirements, e.g., filing tax returns in the US, still have to be fulfilled.
A reentry permit is just another piece in the puzzle. It is one of the pieces of evidence that can establish that your stay abroad is indeed temporary.
Of course, if you don't file US tax returns, for example, the reentry permit doesn't help you much. It is not the ultimate piece, it is just one of the pieces that can support your assertion at the POE that you are returning from a temporary visit abroad.

The question and context here was if at all REP helps when one wants
to use for repeated trips of 6 months and stay in US for few weeks .
Will CBP consider it is helpful tool in this scenario or it doesn't matter.
My contention was it may be superflous one in this sitaution.Having REP
is one's choice of course.
Coming back in six months,the intention is still temp. stay abroad and while going repetetion of 6 months saga ,when CBP questions why this?,can some body shiow I have REP so don't your self worry? and CBP says OK?and welcome.?

 

[desi74]

Coming back in six months,the intention is still temp. stay abroad and while going repetetion of 6 months saga ,when CBP questions why this?,can some body shiow I have REP so don't your self worry? and CBP says OK?and welcome.?

A valid point indeed and of course no one can give a soild answer to this question. let me sumarize the discussion:

One may argue, and understandably so, that why we need a re-entry permit if we plan to come back to USA every 6 months ( or more ferquently) because we can always enter USA by showing our green card?

The possible explanation would be that a re-entry permit would potentially facilitate/ease the entry process into USA at the immigration desk. Without a re-entry permit, one has to face a lot of critical questions by the immigration officer as to why he/she keeps coming back and forth every 6th month? With a re-entry permit, “hopefully”, it will be little easier to answer such questions because by having a re-entry permit, you have already indiacted to INS that for the next 2 -years, you need to stay out of the country.

In addition, if you dont have a re-entry permit and you repeat 6-month saga, it will be extremly difficult to satisfy the officer's concern (the most critical concern) that for how long will you continue this 6-month "come and go" pattern? With a re-entry permit, hopfuly you can say that you should be able to tackle your problem back home within a 2-year period and that you return back to USA perodically to take care of your home and meet your family (assuming you have a home and a brother/sister/cousin in USA).

As pointed out by JoeF, re-entry permit is one of the pieces of evidence that can establish that your stay abroad is indeed temporary.But again, it is just a logical explanation and no one can say for sure that re-entry permit would save you from intense questioning. These days, no one can predict the immigration officer’s attitude accurately anyways.

I hope we all understand by now that re-entry permit is just an extra effort to save yourself from intense questioning if you intend to return every 6th month and to enhance your links with USA. Nothing else....

 

[brb2]

In the absence of a REP, "visiting" the US every 6 months can cause the POE officer to assume that PR has been abandoned because there may not be a defined end date. In the case of REP, the application process will indicate the temporary purpose of the PR having to maintain residence out of the US. Visiting the US every 6 months can be incidental to managing one's assetts or keeping in touch with family and friends in the US. I would strongly recommend a REP in such cases. I know of a person who has an REP and visits the US every 11 months to keep the clock from re-setting. The person is attending college overseas in his home country. The POE officers ask how his studies are going etc while coming in.

A valid point indeed and of course no one can give a soild answer to this question. let me sumarize the discussion:

One may argue, and understandably so, that why we need a re-entry permit if we plan to come back to USA every 6 months ( or more ferquently) because we can always enter USA by showing our green card?

....

 

[Magician]

Desi74,
In your first message you mentioned your friend owns a house in US. Isn't that a valid reason to enter US in any frequency as he rents that house and needs to look after the property? Its kind of business for him and I am sure he might have to show the rental income in his Tax filings also.

 

[desi74]

That actually can backfire, as you usually don't rent out the house you live in...
See, e.g., http://www.americanlaw.com/maintlpr.html
"For example, in Matter of Huang, the alien and her two children had resided in Japan except for brief annual visits to the U.S. to maintain permanent resident status. The BIA found that she had abandoned her lawful permanent residence since: (1) she had stayed with her sister-in law during her brief visits in spite of her ownership of a house in the U.S.;..."

Thanks for raising such a valid point. I was not aware of this particular point but franly speaking it is so stupid…I mean what if someone has a home paying freaking 2200 dollars per moth for mortgage interest and property taxes, how the hell he can afford paying such a huge amount every month, even if he is gone for 3 months…..plus if one has a rentry permit, it means he can potentially be gone for next 23 months…of course he has to rent his home or sell his home…how in the world renting a home could be considered equivalent to abandoning his/her permanent resident ship…By any standard, renting a home is an indication that he/she intends to keep his ties with USA…..plus h/she will also show rental income during his taxes….so it is just mind boggling that USCIS can get so low to abandon people of PR….

 

[pralay]

That actually can backfire, as you usually don't rent out the house you live in...
See, e.g., http://www.americanlaw.com/maintlpr.html
"For example, in Matter of Huang, the alien and her two children had resided in Japan except for brief annual visits to the U.S. to maintain permanent resident status. The BIA found that she had abandoned her lawful permanent residence since: (1) she had stayed with her sister-in law during her brief visits in spite of her ownership of a house in the U.S.;..."

But it can backfire only if there are other reasons/factors involved - for example "visiting" and no clear end date of absence. I don't think just renting his own house was the only reason reentry denial. From the brief note in the mentioned website, I kind of got an idea that the person was basically used "having real estate in USA" is a workaround for purpose of maintaining LPR status.

 

[pralay]

Thanks for raising such a valid point. I was not aware of this particular point but franly speaking it is so stupid…I mean what if someone has a home paying freaking 2200 dollars per moth for mortgage interest and property taxes, how the hell he can afford paying such a huge amount every month, even if he is gone for 3 months…..plus if one has a rentry permit, it means he can potentially be gone for next 23 months…of course he has to rent his home or sell his home…how in the world renting a home could be considered equivalent to abandoning his/her permanent resident ship…By any standard, renting a home is an indication that he/she intends to keep his ties with USA…..plus h/she will also show rental income during his taxes….so it is just mind boggling that USCIS can get so low to abandon people of PR….

desi74, don't look at the matter in black-and-white. Renting your home while you are absent is not bad - if you have clear end of of your absence (basically your foreign stay is temporary in nature). But showing to officer that you have a real-estate as a proof of maintaining LPR status, when you actually rented out, can be counter-productive.