Returning residents beware- Running out of time on your “green card”
In a recent case, the United States Court of Appeals for the 6th Circuit (covering Michigan, Ohio, Kentucky, and Tennessee; Lateef v. Holder, Case No. 10-3354 (June 26, 2012)), the court held that a Pakistani woman who had legal permanent residence status since 1991 abandoned that status when she returned to Pakistan for significant periods of time and additionally, lied to immigration officers on her reentry to the US.
The 6th Circuit noted some pertinent facts: Lateef’s ties to the US included only her legal resident brothers and parents. She had also never been employed or owned property in the US.
Lateef was placed into removal proceedings after she reentered the USA with her husband and their two children once their immigrant visas had been granted. Lateef had applied for those visas, but due to delays in the priority dates, the applications were not approved until 10 years later, when she returned to the US in 2001 after her husband and son’s immigrant visa petition were approved in 2000 (Lateef had applied for her husband’s immigrant visa only after her marriage in 1995).
The 6th Circuit found that “Lateef made seven trips to Pakistan during the approximately 116 months after she immigrated to the US. Over the course of that 116 months after she first arrived in the US until her encounter with INS in February 2001, she spent 35% of her time in the US (40 months) and 65% of her time in Pakistan (76 months)”.
Distinction between validity of “green card” and “application for admission”
It is important at this juncture to understand the difference between an “application for admission” and a “validity” of a “green card”.
Validity of a “Green Card”
Under 8 C.F.R. §211.3, a permanent resident card is valid if the holder returns to the USA or commences a journey to return to the USA within one year of departing the USA.
“Applicant for Admission”
By contrast, under the Immigration and Nationality Act, §101 (a) (13) (C), an alien lawfully admitted for residency in the United States is an “applicant for admission” into the United States if the alien has been absent from the United States for a continuous period in excess of 180 days (INA §101 (a) (13) (C) (ii))
What this means is that an alien may remain outside the United States for upto one year. However, it also means that an alien who reenters the United States after an absence of more than 180 days is subject to secondary inspection, questioning, and determination as to the reason for their absence and their desire to remain in the United States. If the US Customs and Border Protection officer at the port of entry determines that the alien is not maintaining LPR status, the USCBP may refer the alien for further proceedings, including revocation of the green card.
There is also a second, perhaps just as important reason to protect LPR status: an alien can apply for naturalization (US Citizenship) only if he or she has met the residency requirements for actual stay in the USA. Lengthy absences from the USA subtract from the residency in the USA, and so make it harder for the alien to qualify for US Citizenship. For instance, a Permanent Resident who is outside the USA for the majority of the year will accure time toward US Citizenship at a very slow rate, and so it could take well over the minimum time before that Permanent Resident is eligible to apply for US Citizenship.
Factors considered by the 6th Circuit
The 6th Circuit examined “the totality of an alien’s circumstances” to determine if Lateef had abandoned her resident alien status. This included the location of Lateef’s family, her property interests in the USA, her employment (if any) in the USA, and the length of her trips abroad. The 6th Circuit also looked to any other evidence which would demonstrate Lateef’s intent to maintain her legal permanent resident status.
Objective vs. Subjective Intent
The alien’s intent is measured objectively, which means that simply evidencing a desire to retain permanent residency is not sufficient. The alien’s actions must also support his or her intent to remain a permanent resident. In this case, Lateef appeared to fail on all these grounds.
Possible exception for medical or family reasons:
There was a dissent (one of the judges on the panel had an different conclusion) in Lateef’s case which may provide a limited exception to the residency requirement. The dissenting judge (one of three) opined that Lateef should not have lost her legal permanent resident status because Lateef “remained abroad primarily for the purpose of providing necessary care to family members who expect to obtain permission to enter the United States within the next few years.” (Citing Hana v. Gonzales 400 F.3d 472 (6th Cir 2005)). This may be a limited exception if the facts of a particular case warrant it (eg: caring for a young child or a parent with a severe medical condition).
Possible strategy to avoid loss of LPR status:
The strategy to avoid being stripped of permanent residency due to inadvertent failure to return to the United States could include possession of property in the US; a job or other investment in the US; bank accounts and filing of tax returns in the US; as well as any other actions intended to develop ties in the US such as membership in organizations, participation in activities, etc.
This is an increasingly difficult problem because the USCBP is constantly alert to returning permanent residents and in many instances cautions them to return more regularly or secure permanent residence in the USA rather than use their green card as a visitor visa to enter the United States when they please.
It is clear from the Lateef case that the extended stay of a permanent resident overseas, absent compelling reasons could result in a termination of their legal permanent resident status. Indeed, in the absence of any significant and provable ties to the United States, it becomes very hard for a returning permanent resident to explain why he or she did not intend to abandon his or her permanent residency. Lengthy absences from the USA also delay the Permanent Resident’s ability to apply for naturalization (US Citizenship).
LPR status is not easy to obtain, often takes a protracted period and significant expense to obtain, and is expansive to regain. LPR status carries legal and statutory responsibilities and therefore should not be lightly taken. A LPR with the need or desire to have to remain abroad for an extended period or periods is well advised to consult with an immigration law expert to determine the best strategy to preserving LPR status in the face of increasing US government scrutiny!
So – be warned: A permanent resident who does not really “reside” in the United States runs the risk of being flagged for proceedings upon reentry to the US after a protracted absence.