QUESTION: I have been outside the United States for eight months and have friends who went back to the country and were forced to give up their green cards and then enter on a B2 Visitor Visa. Will that happen to me?
Answer: If there is an absence of intent to permanently reside in the U.S., coupled with objective circumstances, lawful permanent residents (LPRs) can lose their status even if they visit the U.S. often. An LPR may have multiple residences, but a U.S. residence must be the permanent one. In other words, LPR status may be lost if abandoned. Possession of reentry permit does not prevent Department of Homeland Security (DHS) from inquiring as to whether the holder abandoned his residency; it simply prevents the DHS from relying solely on the duration of the absence as a basis to determine abandonment. Further, a reentry permit does not bar DHS from refusing admission to the holder and placing him in removal proceedings.
Question: This sounds scary. What do I do?
Answer: First of all, while it is possible to lose your residency, you cannot be forced to sign the paper giving up your right to be a lawful permanent resident. Thus, the first item you want to do is to NOT SIGN ANYTHING. It is your right to not sign and they cannot force you to sign. Additionally, DHS (the officer at the port of entry) cannot force you to take a B2 Visitor Visa instead. You must request to see an immigration judge. This will make is so that you will be placed into proceedings to see the immigration judge to argue whether or not your residency has been abandoned or not.
Question: How can I protect myself?
Answer: First, if you will be gone for a while from the U.S., you must keep your assets in the U.S. Keep a lease if you can. Pay U.S. taxes. Hold furniture in the U.S. Keep the bank account.
Question: Is there a maximum time that I cannot come back with my green card?
Answer: Yes. It will allow you entry to the U.S. up to 354 days after you have left. Thus, do not leave more than 1 year at a time.
Question: Is all lost if I’m gone more than 1 year?
Answer: No. You will be able to file an Application at the Consulate to show you did not abandon your residency in the U.S. and to explain the reasons for the lengthy departure (i.e., taking care of your sick mother, testifying in some case, working on estate matters, etc.) and if granted, you will be able to get paroled into the U.S.
Question: What is the burden of proof? Meaning how much do I have to prove to win?
Answer: Once a colorable claim to LPR status is made, the burden is on DHS to prove abandonment by clear, unequivocal and convincing evidence. Thus, you must just show a reasonable claim that you did not abandon your residency and then DHS has a much higher burden of showing, in fact, you did abandon your residency. In fact, clear, unequivocal and convincing is an extremely high burden for them to meet. This makes winning on your part easier.
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Atty. Brian D. Lerner has been an Immigration Attorney for nearly a quarter of a century. He is married to a Filipina and has helped thousands of Filipino families all over the country. In addition to his offices in Southern California in Long Beach and Carson, he has an office in Quezon City. He is a certified specialist in Immigration and Nationality Law by the Legal Board of Specialization, California State Bar. The initial consultation is free. Call (562) 495-0554 and/or send an e-mail to [email protected].
