Discussion Points for Punto Legal –March 20, 2019
Here is question I often get: Is there a specific amount of time that a green card holder can spend outside the US without abandoning their green card?
US Permanent Residents are required to maintain the US as their primary permanent residence. When a Permanent Resident fails to maintain the US as their permanent residence the US government can take the position that they have abandoned their US Permanent Residence. But, the law makes is hard for the Government.
People want to know if there is a clear test for abandonment. Is it 180 days? Is it a year? The length of time spent outside the US is just one factor that they use to determine whether someone is maintaining the US as their permanent residence. Trips outside the US that are longer than 180 days can trigger CBP to question whether the person was continuing to maintain he US as their permanent residence. If the trip is for longer than a year, it can create a presumption that the person abandoned their US residence. If someone is planning on taking a trip that is longer than a year, they should apply for a reentry permit.
Some other examples of factors that the government will consider when determining whether someone has been maintaining their US permanent residence include:
- The reason for the trip. Whether the trip was for a temporary purpose.
- How much time the person has been spending outside the US compared to the amount of time they have been spending within the US.
- Whether the person has been working abroad. Also whether the employment was in a permanent position or whether the employment was in a position that was temporary in nature.
- Whether the person continued to have a permanent home in the US during their trip(s) abroad. For example, they continued to own their home or to pay rent for their home during their trip(s) abroad.
- Whether the person has filed US tax returns each year as a US resident. Filing US tax returns as a non-resident or failing to file US tax returns because the person did not consider themselves a US resident, is a strong indicator that the person was not maintaining the US as their permanent residence.
- Whether the person’s family members remained in the US during their trip(s) abroad.
Remember I said the law makes it hard for the Government to prove a permanent resident abandoned his U.S permanent residence. In a case I read today, a refugee was granted permanent residence in 2010. Less than 3 months later, he went back to his country of origin for four years. When he returned to the U.S. at the airport in Chicago, he was put in immigration court. The immigration judge ordered him deported. He did not have a lawyer. He appealed the case to the Board in Immigration Appeals. The board reversed the decision. The board said the Government had to prove by clear, unequivocal, and convincing evidence that the immigrant had intended to abandon his permanent residence.
I had a question this week about the immigration medical exam for an immigrant fixing his papers in the U.S. He had received a letter from the USCIS telling him he had not submitted a medical exam with his applications and would have to do submit a medical exam at some point in the future.
Almost all applicants for adjustment of status must submit a medical exam at some point in the immigration process. The primary purpose of the exam is to screen immigrants for TB and sexually-transmitted diseases. It also requires that you get certain vaccinations up to date. The medical exam is now valid for 2 years. Now you have three options for submitted the medical exam. First, you can send it in with your application to fix your papers. Second, you can take it to the interview and give it to the interview officer. Or, you can submit it after the interview when you get a request for evidence.
3. Adam Walsh Act.
When I talk to people who want to become permanent residents, I ask them about their criminal history because certain crimes can require waivers or prevent you from immigrating. Sometimes the U.S. relative who is petitioning for his spouse or children wants to know if his criminal history is relevant to the process. I tell them that we have fixed papers even where a citizen -petitioner was in prison. But there is one exception to this rule. A law entitled the Adam Walsh Act, which was passed in 2006. It imposes immigration penalties on U.S. citizens and permanent residents who are convicted of certain crimes against minors. A U.S. citizen who is convicted of a "specified offense against a minor" may be prevented from filing a visa petition on behalf of a close family member. The law provides an exception only if the immigration service makes a discretionary decision that the citizen or permanent resident petitioner does not pose a risk to the petitioned relative despite the conviction. Here is an example: Hector is a U.S. citizen who pled guilty in 2005 to soliciting a 17-year-old girl to engage in sexual conduct. In 2017 he submits a visa petition on behalf of his immigrant wife. Immigration authorities will run a background check on his name to discover the prior conviction. His visa petition will be denied, unless he is able to obtain a waiver based on proving that he is not a danger to his wife. "Specified offense against a minor" includes offenses that are not extremely serious, such as false imprisonment. It is defined as an offense against a victim who has not attained the age of 18 years, which involves any kind of sexual activity with a child.