How strict is the requirement to not be out of the U.S. for more than 6 consecutive months?

[vince_w 0]

When I got my green card I was told by my lawyer to not exceed 6 consecutive months outside the United States. So far I've been following that rule for the last 3 years even though we pretty much live abroad now.

I'm wondering though how strict this requirement is? I'm not going to be applying for citizenship anytime soon since my country doesn't allow dual citizenship but I don't want to lose my permanent residency in the U.S. either. For example, this year I'd have to go back in Nov to be under 6 months but my wife and I would rather go back to the U.S. in Dec in time for Christmas which would put us at 7.5 months.

In case it's relevant, we own an apartment in the U.S. and we're always on time in paying our property taxes, mortgage and filing our taxes. My friend told me that as long as we're under 1 year and pay taxes we should be fine but he might not know what he's talking about

[Boiler 46,122]

Either your Lawyer is an idiot or you misunderstood what he said.

You might get away with it, you might not.

[Brother Hesekiel 2,236]

You have already violated the terms of your residency; they just haven't found out yet. How long it will take until the computer at the P.O.E. where your Green Card is scanned sounds an alarm and they take away your card and send you right back to Nepal is anybody's guess. It's like Russian Roulette: you have 7 chambers with one bullet. You can pull the trigger several times, but eventually it will make BOOM!

[SimranS 9]

Whether you actually lose your residency is dependent on several factors, not just your physical length of absence from the USA. You should never agree to sign an abandonment of residency paper if an officer at POE asks you to, because they have to give you a hearing with an immigration judge. The judge will normally look at your ties to the USA versus your ties abroad and determine whether you intended to abandon your residence. Maintaining property and paying taxes is good evidence of ties to the US, as is using a US bank account while abroad, keeping a valid US drivers license, etc. Keep evidence of these things with you when you reenter the USA in case you're asked to show them.

VJ members have reported their experiences in other threads reentering between 6 and 12 months. All reported that they were let in either without any hassle at all or with just a lecture about not being gone for too long. With that being said, there are never any guarantees and it's always safer to never be out of the country for more than 6 months, because an absence of longer than 6 months is usually much more likely to be put under scrutiny. You might be fine at 7.5 months or you might not, it depends more on the mood of the officer that day than anything else.

[VanessaTony 3,567]

Your post states you now live abroad. It also states that you do not stay out for more than 6 months at a time, but it does NOT tell us how long you're in the US when you ARE in the US.

Unfortunately I remember a post where someone confused the term "permanent" to mean they are permanently going to be a resident of the US, no matter what. This isn't the case, it means you must be a resident who is permanently IN the US, that's the important part. Your post implies this is NOT the case for you and there's the issue.

Your lawyer has unfortunately given you inaccurate advice. While he is correct that yes, any stays outside of the US for more than 6 months CAN be considered for abandonment of LPR, he has neglected to tell you that your "US hopping" is also a means to revoke your LPR. You are supposed to be living permanently in the US... not abroad so now you have some choices:

- voluntarily give up your LPR now, and apply for CR-1 or DCF when you want to come back to the US permanently

- apply for a re-entry permit, this will give you longer to remain outside the US (up to 2 years I believe)

- move back to the US

As "JustBob" said, you have already violated the terms of the GC, how long it takes for you to be caught.. no-one knows. You might never be caught, you might be caught this christmas.

Also out of interest, you are actually allowed to be outside the US for up to 12 months (not 12 months or longer), 6 months is just the amount of time at which abandonment can be considered, less than 6 months and they can't consider you... I think you're treading a very thin line and I hope for your sake you get to make your choice before it's made for you.

[Brother Hesekiel 2,236]

You should never agree to sign an abandonment of residency paper if an officer at POE asks you to, because they have to give you a hearing with an immigration judge.

You are mistaken.

USCIS, ICE and CBP are all children of the same mother: DHS.

If a Green Card holder who is IN THE USA is found to be in violation and USCIS wants to terminate his status, he has the right to see a judge.

If a Green Card holder is OUTSIDE the USA then CBP can deny him admission based on abandonment of residency. They just won't let him back in . . . unless he signs the form. After he signed the form, they let him in as a visitor, a tourist, and as such there's no point to see an immigration judge anymore.

[SimranS 9]

You are mistaken.

USCIS, ICE and CBP are all children of the same mother: DHS.

If a Green Card holder who is IN THE USA is found to be in violation and USCIS wants to terminate his status, he has the right to see a judge.

If a Green Card holder is OUTSIDE the USA then CBP can deny him admission based on abandonment of residency. They just won't let him back in . . . unless he signs the form. After he signed the form, they let him in as a visitor, a tourist, and as such there's no point to see an immigration judge anymore.

That doesn't make any sense- how can a person from Nepal be admitted as a visitor without a valid B2 visa in his passport? The case you're talking about (I think) was someone from Canada who is eligible to enter as a visitor without a visa. Also, that person had spent several years outside the US without obtaining a reentry permit. Someone reentering within the stipulated time (1 year) does have the right to see a judge.

"the Supreme Court in Kwong Hai Chew v. Colding, 344 U.S. 590, held that an alien who had previously been lawfully admitted for permanent residence, and who was seeking to make a reentry, was not in the position of a person seeking initial admission, but was to have his status assimilated to that of a resident alien who had not left the United States and was, therefore, entitled to due process of law and to a hearing. In Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C. Cir., 1958), the court carried the situation one step further, and declared that not only was the returning resident alien applying for admission entitled to a hearing, but he was entitled to a hearing at which the Government bore the burden of proof."

http://www.americanlaw.com/maintlpr.html

[SimranS 9]

"When permanent residents return after a trip abroad, it is important for them to understand their rights. The most important of these rights is the right to a hearing before an immigration judge if their permanent resident status is questioned by the immigration inspector.

Most visitors and other nonimmigrants have no right to a hearing, and immigration inspectors have been known to try and encourage permanent residents to sign an abandonment of their green cards instead of requesting such a hearing. Once a person signs an abandonment, their permanent resident status is gone and very difficult (in fact, normally impossible) to recover.

Returning permanent residents, therefore, should be familiar with the rules governing that status as set forth in this paper, and if their entitlement to that status is questioned, they should present the evidence outlined here. If it is not accepted by the immigration inspector, they should politely request a hearing on the question."

http://www.klaskolaw.com/articles.php?action=view&id=51

[Boiler 46,122]

You have the right to appear in front of an IJ.

They have the right to detain you until this happens.

Usually they parole people in, no visa required.

[SimranS 9]

You have the right to appear in front of an IJ.

They have the right to detain you until this happens.

Usually they parole people in, no visa required.

If they detain you until the hearing then obviously you're not being paroled in, but if they decide to send you a summon instead then you would be paroled in pending the hearing.

The previous poster said that AFTER signing an abandonment the OP would still be allowed to enter the US as a visitor. This is clearly incorrect because after signing an abandonment you lose your right to a hearing and your LPR status is revoked. Nepal is not Canada nor is it a VWP country, therefore common sense tells us that after losing LPR status there would be no legal basis to admit a Nepali and he would likely be deported on the next plane. If he wanted to reenter as a visitor he could apply for a B2 visa (which may or may not be granted) after reaching Nepal, through the normal application process.

My point was that the OP should exercise his right to appear before a judge, and not agree to sign an abandonment. He should also not be under the false impression that he would still be allowed to enter after signing an abandonment.

[Sebas&Lily 3]

so where can one get more info on that re-entry permit? is it better to turn in your Green Card if you want to move abroad for a year or longer than to just abandon it? does turning in the GC bar you from coming back? I thought if I as a US citizen move with my wife back home for a few years, we can still come back by applying directly at the embassy through the CR1 process..

[SimranS 9]

so where can one get more info on that re-entry permit?

Do a search on this site. You'll find a lot of info.

is it better to turn in your Green Card if you want to move abroad for a year or longer than to just abandon it?

Well when you turn in your GC you ARE abandoning it. The only difference is you would be signing the abandonment papers at the US embassy abroad, or in the US before you leave (rather than at POE upon trying to reenter the US, which is what we were talking about in this thread). If you're going to be abroad for 1-2 years, then getting a reentry permit BEFORE leaving the US is the best way to go. If it's longer than 2 years, you'll have to get an SB-1 (returning resident) visa or start the IV application process over again.

does turning in the GC bar you from coming back?

NO, but you'll have to go through the entire process over again, same as you did the 1st time you got the GC.

I thought if I as a US citizen move with my wife back home for a few years, we can still come back by applying directly at the embassy through the CR1 process..

Yes, you can do that. But by that time it will technically be an IR1 since you will have been married more than 2 years.

[Sebas&Lily 3]

I see, thank you SimranS, you have answered a lot of my questions.

[Brother Hesekiel 2,236]

They can't force anybody to sign an abandonment. But CBP has leverage and the right to determine residence abandoned. Yes, they lock the guy up in a detainment center unless he opts for getting on the next plane back. Somehow, the detention center doesn't count as US soil, just a holding place in the twilight zone. Yet if he pleads to be let in in order to see his family or feed his fish, they have him sign the form and then pardon him in with an I-94 attached which states the duration of stay, usually 90 days.

It's admittedly a psycho game, but who would have the nerves to sit in a -- very nasty -- detention cell awaiting formal deportation if a signature would allow him in again and at least get his affairs in order? This is how the game is played.

Understand that CBP doesn't pull such a big one unless the immigrant has really been away for quite some time and there's credible evidence that he abandoned his residency.

Edited September 16, 2010 by Just Bob

[SimranS 9]

They can't force anybody to sign an abandonment. But CBP has leverage and the right to determine residence abandoned. Yes, they lock the guy up in a detainment center unless he opts for getting on the next plane back. Somehow, the detention center doesn't count as US soil, just a holding place in the twilight zone. Yet if he pleads to be let in in order to see his family or feed his fish, they have him sign the form and then pardon him in with an I-94 attached which states the duration of stay, usually 90 days.

It's admittedly a psycho game, but who would have the nerves to sit in a -- very nasty -- detention cell awaiting formal deportation if a signature would allow him in again and at least get his affairs in order? This is how the game is played.

Understand that CBP doesn't pull such a big one unless the immigrant has really been away for quite some time and there's credible evidence that he abandoned his residency.

Interesting- I guess that would only work if the person was totally convinced they'd have no chance of keeping their GC at a hearing. But this extreme scenario doesn't seem relevant to the OP's situation. If he readily signs an abandonment at their request, he'd normally be sent back on the next plane, according to all the legal websites I've seen. That's why they all advise immigrants to request a hearing, which they usually receive a summon for later.