In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
QUESTION: Is there a specific amount of time that a green card holder can spend outside the US without abandoning their green card?
THE IMMIGRATION ANSWER MAN – ARI SAUER: US Permanent Residents (green card holders) 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 determine that they have abandoned their US Permanent Residence.
Abandonment is really a factor of continuing to maintain one’s permanent residence within the US. 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. But the reentry permit just allows them to return to the US after a trip of longer than a year, it does not get rid of the requirement to maintain the US as the permanent residence.
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 (using 1040NR or 1040NR-EZ) 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.
In addition to the issue of not abandoning your US permanent residence, there is also the issue of eligibility to apply for naturalization. For naturalization, there is a requirement to have been physically present in the US for at least 50% of the time, during the past 5 years as a permanent (3 years for certain spouses of US citizens). There is also a requirement to maintain continuous US residence during the period, which is broken by a trip abroad of longer than a year (even if you have a reentry permit). Trips of longer than 180 days, but less than a year, create a presumption that there was a break in continuous US residence, which the person will need to overcome by presenting evidence that they continued to maintain their US residence during the trip abroad.
QUESTION: I filed an I-485 with an application for employment authorization and advance parole based on my marriage with a U.S citizen. It has been five and half months, but I still haven’t received any updates other than my biometrics appointment. I have done three service requests but have received no response. What can I do? I need the advance parole to go back to my home country as my father is sick.
THE IMMIGRATION ANSWER MAN – ARI SAUER: It is not unusual right now for it to take 5 or 6 months for USCIS to issue the card that serves as a combination Employment Authorization Document (EAD) and Advance Parole travel document. Sometimes it is taking a bit longer. This is especially true where USCIS has issued a Request for Evidence for the I-485 application or the applications for the EAD or Advance Parole. I encourage you to continue to make service requests with USCIS, or even to request assistance from your Congressman’s or Senator’s office (if you have an attorney representing you, ask them first before doing this). However, USCIS’s responses to these inquiries are usually not very helpful. These inquiries are most helpful where a case is taking a long time because it has “fallen between the cracks” and these inquiries can help to get the case back on track.
However, if your father is extremely sick, for example to the point where waiting for USCIS to issue the advance parole might result in him passing away before you are able to visit with him, you might be able to get USCIS to issue the advance parole document under their Expedited Request procedure. At a minimum, you would need a letter from his doctor to prove that he is that sick. The current procedure for asking for an Advance Parole to be issued under Expedited Request is to make an Infopass appointment with your local USCIS field office (if your local USCIS field office does not have any infopass appointments available in the time you need, you could try going to the USCIS office without an infopass appointment) and to file a new application for Advance Parole, and additional required proof, including proof of the emergency (you shouldn’t have to pay a filing fee where your I-131 application is based on a pending I-485 application, but sometimes new filing fees for the form are required to be paid). Otherwise, you will just need to wait a little bit longer. It should come soon.
Other situations where USCIS may consider expediting an application include:
- Severe financial loss to company or person;
- Emergency situation, for example where the applicant is gravely ill;
- Humanitarian reasons, for example, the outbreak of war in the applicant’s home country;
- Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States, for example, an organization broadcasting in regional areas to promote democratic interests;
- Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
- USCIS error; or
- Compelling interest of USCIS.
Please note, however, that USCIS will normally only grant an expedite request in more extreme situations. The procedure for requesting the expedited processing of other petitions and applications is often different than the procedure for requested expedited processing of an application for Advance Parole document explained above. Expedite Processing is not available for those petitions that can be filed with USCIS using Premium Processing.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.