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.
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QUESTION: My father is a US citizen. He filed an I-130 application for me in 2012, which was approved in 2012. At the time I was unmarried, but I got married in 2014. My father is 92 years old and since my I-130 changed from the F1 category to the F3 category, I am worried that he may no longer be here by the time I can apply for a visa. Is there any way to expedite our application, based on my father’s age?
THE IMMIGRATION ANSWER MAN – ARI SAUER: Unfortunately, there is no way to expedite the wait for a visa to become available for an immigrant petition. It is entirely based on what preference category your petition falls into, the priority date for that petition, and your country of chargeability. There is no way to jump ahead in that line.
Your father should hopefully live for a very long time. But since you are concerned about what would happen should he pass away before you are able to become a US permanent resident based on his petition, you should know that in certain situations a petition can be reinstated if it becomes revoked due to the death of the petitioner. You can learn more about reinstatement of an immigrant petition from my previous blog post on this topic: https://immigrationanswerman.com/2012/04/10/if-my-i-130-petitioner-dies-can-i-have-the-i-130-reinstated/
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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.
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.