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: I applied for Work Authorization (EAD) and Advance Parole along with my I-485 application. Will travel before the Parole is approved forfeit just my Parole application or will that also cause the denial of my application for EAD?
THE IMMIGRATION ANSWER MAN – ARI SAUER: The answer depends on what immigration status you hold.
If you are not in valid H-1B, H-4 (for spouse or child of H-1B), L-1A, L-1B or L-2 nonimmigrant status when you leave the US, and you do not have a valid H-1B, H-4, L-1A, L-1B or L-2 visa in your passport to use to return to the US, then leaving the US before the Application for Advance Parole (Form I-131) is approved and the Advance Parole document is issued will result in the abandonment and denial of the Form I-485 Application for Adjustment of Status, as well as the applications for Advance Parole (Form I-131) and Work Authorization (EAD) (Form I-765).
If you are in valid H-1B, H-4 (for spouse or child of H-1B), L-1A, L-1B or L-2 nonimmigrant status when you leave the US and you have a valid H-1B, H-4, L-1A, L-1B or L-2 visa to return to the US on and this is an application for an initial Advance Parole, then travel outside the US before Form I-131 is approved and the Advance Parole is issued will result in the Form I-131 application being abandoned and denied, but should not affect your Form I-765 application for EAD.
If you already have a valid Advance Parole document and the pending Form I-131 is an application to extend your current Advance Parole and you will be returning to the US on your current Advance Parole prior to the current expiration date, then traveling abroad while your Form I-131 application is pending should not result in a denial of any of these applications.
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.
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.