Q & A March 14, 2004Q & A 1 Dear Mr. Lee, I have a relative who is a green card holder. Due to certain reasons, he has not been able to stay in the U.S. for six months per year. Last year, he received a one-time return to the U.S. permit. He was told that if he did not return to the U.S. within certain time, and if he did not stay for six months per year when he returned to the U.S. the next time, his green card would be revoked. We have heard some information that people in his situation may be able to stay in the U.S. for shorter times but still retain the green cards. Question: Is there any other way that my relative can hold his green card but still stay in China longer than six months per year? Chen Dear reader: The rules for retaining permanent residence in cases where the green card holders choose not to remain in the U.S. for six months of each year are many times confusing and much discretion is given to immigration inspectors at the ports of entry. In general, a permanent resident is supposed to reside in the States for at least six months of every year. Each absence of six months or more is looked upon as an opportunity for an immigration inspector to determine whether the individual is maintaining residence status. Trips of under six months are not looked upon as absences which can trigger a loss of permanent residence unless there is such a pattern that the immigration inspector believes that the individual is no longer residing in the States. A permanent resident card allows reentry for absences up to but not including one year in duration, and a reentry permit allows reentry for up to but not including two years. However, reentry under a permanent resident card or reentry permit within these time limits is not guaranteed. A reentry permit does help in many instances as its presence tells an immigration officer that the permit holder informed the USCIS (U.S. Citizenship and Immigration Services) prior to leaving the country that he/she contemplated a longer period of stay overseas. Where individuals like your relative have received warnings, they are on fair notice that they may lose their green cards if they continue their pattern of living overseas. If your relative insists on not complying with the warning, he would enter the murky realm of questions such as who gave the warning -- the consulate or embassy or CBP (U.S. Customs and Border Protection) inspector? If the warning was notated on computers? Whether one CBP Inspector looks more friendly than another on subsequent reentries? If your relative is willing to attempt to defend his permanent residence status before an immigration court or will he just surrender his card if challenged at the port of entry? I note your reference in your letter that you have heard some people in his situation may be able to stay in the U.S. for shorter periods of time, but still retain green card status. We have seen many who are able to do so, but there is always a chance that they will have a problem re-entering the U.S.. I believe that your relative should remain in the U.S. for six months upon his return to comply with the warning. Afterwards, if he wishes to stay overseas for longer periods of time and if he has not already exhausted the period of time granted for reentry permits, he should apply for such, remember to pay his taxes on his worldwide income, and keep all ties and bonds with the U.S. during his absences such as memberships in organizations, and the keeping of property, real and personal, in the States.
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Copyright © 2003 Alan Lee, Esq. |
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