Dear Atty. Gurfinkel:
I got my green card several years ago, but I still like my life in the Philippines. So, I spend most of my time in the Philippines, and go to the U.S. only for a month or two each year. The last time I went to the States, the Immigration Officer at the airport asked me how long I was outside the U.S., and started making a big deal about the fact that I’m away all the time. He even wrote something in my passport about warning me.
I have a home and business in the Philippines, my kids are in school, and I’m just not ready to settle down in the States. I thought that as long as I don’t stay outside the U.S. for over one year, that I won’t have any problems in holding on to my green card. Why is the Immigration giving me such a hard time?
Very truly yours,
Some green card holders treat their green card as though it were a visitor’s visa. They come to the U.S. for only a month or two, but spend most of the time in the Philippines. They think that as long as they make brief, periodic trips to the U.S., or if they do not stay outside the U.S. for over one year, they are “safe,” and will not encounter any problems with U.S. Immigration.
However, even though a person has been granted a green card, it is still possible that he could lose his immigrant status, or be considered to have “abandoned” that green card, if he stays outside the U.S. too long or for too much time. The Department of Homeland Security (DHS) takes the position that if a green card holder stays outside the U.S. continuously for more than one year, it is considered as though that person has abandoned his immigrant status (being a green card holder). A green card could be abandoned even if a person is outside the U.S. for less than one year, when he lives and works abroad.
The DHS is taking a stronger stand against these “part-time” green card holders. CBP officers at U.S. entry points (i.e. airports) ask green card holders “How long have you been outside the U.S. on this trip?” In the past, the CBP would not ordinarily question you, even if you stayed out for 11 months, as long as you did not exceed one year. However, now, even if you are out only six months and one day, the CBP could investigate and question why you were out so long, and the CBP could determine that you abandoned your green card.
There are certain steps that you can take to ensure that you retain your immigrant status, if you are planning to stay temporarily out of the U.S. One of the most important things you should do is to maintain evidence or proof of your residence in the U.S., or show that you truly intend to reside in the U.S., such as:
1. File U.S. tax returns.
2. Maintain a U.S. address (either actual or in care of a relative in the U.S. Merely having a P.O. Box does not show you have a residence in the U.S.)
3. Make sure you enter the U.S. at least once a year, although the more often you enter and stay in the U.S., the better it is for you.
4. Maintain a valid U.S. driver’s license.
5. Keep U.S. stocks and bonds.
6. Continue to use U.S. credit cards.
7. Continue any club memberships in the U.S.
8. In any correspondence, make reference to your temporary assignment abroad.
9. Maintain bank account in the U.S.
If you file a tax return in another country, make sure that you indicate your residence is the U.S. (Many immigrants abroad are told by accountants that they can avoid paying U.S. taxes by stating that they are not residing in the U.S. However, this attempt at tax savings would directly contradict your status as a “permanent resident” of the U.S., and could affect or jeopardize your immigration status.)
Another thing that you can do to “protect” your immigrant (green card) status is to apply for a “re-entry permit” while you are in the U.S. and before you go abroad. (You cannot apply for a re-entry permit when you are outside the U.S.) This re-entry permit allows a green card holder to remain outside the U.S. for up to two years, without being considered to have abandoned his immigrant status.
Even if the DHS believes that you have “abandoned” your green card, under certain circumstances, with a proper presentation of appropriate evidence and other documentation, it is possible to overcome this presumption of abandonment of your green card. However, each case is different, and would need to be considered on a case-by-case basis. If you have any questions or problems in this area, I would recommend seeking the advice of a reputable attorney, who can analyze your (or your relative’s) situation and advise you of the appropriate course of action to take or preserve your green card.
Michael J. Gurfinkel has been an attorney for over 25 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California.
Four offices to serve you:
LOS ANGELES: 219 North Brand Boulevard, Glendale, California 91203
Telephone: (818) 543-5800
SAN FRANCISCO: 966 Mission Street, San Francisco, California 94103
Telephone: (415) 538-7800
NEW YORK: 60 East 42nd Street, Suite 2101, New York, NY 10165
Telephone: (212) 808-0300
PHILIPPINES: Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines 1227
Telephone: 894-0258 or 894-0239
(This is for informational purposes only, and reflects the firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)