how long can I be "out of US" without being considered abandoned?

[Unknown Guest 15]

So my wife has some family business issues that require her to go back to China for an extended period of time.  We don't want to risk abandonment of her greencard.  I know technically they say you can't be outside of the U.S. for more than 1 year, and there is also an unofficial rule of no more than 6 months abroad. 

 

When do they start counting the 6 months?  per fiscal year? beginning Jan. 1, 2017?  or since the last trip?

Does that mean 6 months straight during 1 trip? 

or can she break it up like 5 months in China, return to U.S. for 2 months + another 4 months in China = total 9 months out of the year?

or does it mean that the total can't add up to more than 6 months in the year?

 

I also know that "intent" to maintain residence in U.S. is necessary to not be considered "abandoned", we have a house under my wife's name + 1 child together.  Child will remain in U.S. most of the time.  Is that suficient to maintain "intent" to maintain US residence?

 

Any advice would be greatly appreciated.  Thanks

 

[AnnaMaria 68]

We just went through this exact same situation. We needed to travel back to Romania to attend to some urgent family issues. We had been hoping while we were there her 10 year green card would have been ready, but after we had been gone about 3 1/2 months, they were still a few months away from us. Our total time abroad was 4 months 5 days. We didn't encounter any issues at all at our pie, he only asked if we were together the whole time and stamped us good to go.

 

We did a ton of research on this issue as things weren't in a stable position for us to leave yet, but there was no way we were going to abandon our hard work to get this far. Here is what I came up with regarding going abroad for an extended period of time.

 

1) The one year rule is pretty much set in stone unless you have the travel waiver which can extend it up to two years, but that is only for very exceptional circumstances.

2) While being gone over a year pretty much guarantees abandonment, they say that border control officers can pull you in yo secondary screening at any time and you should be mindful of this even if your trip is 3-5 months. It is 100% at the officers discretion.

3) In order to file for naturalization, you MUST be on US soil three months prior to filing, we could have filed by now but we are now delayed three months.

4) The definition of physical presence means you maintain a domicile and address in the US you live in. Physical presence is still established for trips of up to 6 months (this is the 6 month rule thing). If you are gone longer than 6 months you have lost your physical presence and it will make getting citizenship very challenging in the future.

5) Your *1 year* starts on the date your passport is first stamped going abroad. The theory is that you MUST be physically in the US for at least half of the year to avoid big issues. Also, it is VERY highly unadvised to take a long trip abroad, return for a short time, and then leave again for a long trip. From what I've read this is a HUGE flag to immigration officers as it looks like you are living abroad and only coming here for brief periods, they have an honest right to assume you've established a new residency abroad.

 

Hope this helps. Plan your trips ahead. Last minute flights are pricey.

[GreatDane 366]

Couldn't agree more with the above response! 

 

Leaving for 9 months of the year, especially with only a short trip home in the US, is a huge red flag and an easy way to get your status abandoned. It seems as though it isn't urgent as you are planning it in advance. My advice would be to skip the trip or keep it much shorter. Very few things are worth that type of risk - your spouse could end up separated from both you AND your child. 

[nightingalejules 678]

I'm just going to argue the less scary side. People (even immigration officers) understand emergencies, and we as LPRs are allowed to travel freely.

 

It means 6 months/1 yr straight in one trip. I mean, if your wife develops a pattern of being out of the US more than she's in, there might be some red flags raised, but if not, (like in this situation, where she's going back for an extended trip but otherwise has been mostly in the US. In fact, even if she thought she'd have to be out for a year, she could apply for a re-entry permit and still be ok.

 

The situation where the total time out of the US applies is when she's applying for citizenship. You have to keep track of all your overseas trips and make sure that you've been in the country for half of the time you require to apply (3 or 5 years)

 

 

[geowrian 22,337]

There's no preset amount of time. Somebody could have been determined to abandon residency after only 1 month, or not at all in a little over 11 months. Beyond that, it's all about making and maintaining ties to the US (and not making those ties abroad). CBP determines if permanent residency was abandoned at POE. CBP will look at the totality of the situation - how long abroad, how long in the US, etc.

 

There is the risk of breaking continuous residency (for naturalization eligibility) if abroad over 6 months on a single trip, or in multiple trips throughout the year (as determined by the IO).

There is a presumption of abandoning permanent residency if abroad over 12 months. Even if CBP determines that it was, she has the right to having an immigration judge hear the case before LPR status is actually revoked.

 

In this case, I would guess that she would be okay to do the 5 months, returning back, then 4 months abroad. But only once...a second short trip back to the US would likely raise big flags on the following return trip.

I would also make sure she's maintaining her ties to the US, including having current/valid state ID/driver's license, making sure she's filing her taxes, etc.

Edited November 13, 2017 by geowrian

[DrEllaNJ 288]

my friend was abroad for almost a year on a 10-yr green card. She did come back for short periods of time, and made sure to get a re-entry card before leaving.

[AnnaMaria 68]

I'm sure people have different opinions, experiences, and thoughts about this.

 

Everything I said was not to scare you but it was information clearly provided from the USCIS  (Google how long can I travel as a lawful permanent resident.

 

And I also found some of my information from immigration lawyers. There are some tthings I mentioned that are 100% factual and there are things that are situational based on your point of entry and your border officer.

 

Before you let anyone here give you an opinion or a different circumstance regarding a situation they know, I highly advise you to do your research on the things I mentioned as most came from the USCIS site and the rest from immigration lawyers.

 

I'm being firm because abandoning residency is a serious issue for families and you would have to start all over with the I130 process if it happens. Do your homework and you and your wife should make a mutual decision based on that. 

[mindthegap 2,590]

Six months is very much part of the official rules, and is in no way 'unofficial'. 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-30960/0-0-0-31016.html#0-0-0-19579

 

29 minutes ago, AnnaMaria said:

 

3) In order to file for naturalization, you MUST be on US soil three months prior to filing, we could have filed by now but we are now delayed three months.

 

Nope. 

 

You must be resident in the state you are filing from, for three months preceding the filing.

You are permitted to travel overseas within that period, but not move states, or change ID to a different state. 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter6.html

 

"An applicant's residence during any absence abroad of less than one year will continue to be the state or service district where the applicant resided before departure. If the applicant returns to the same residence, he or she will have complied with the three-month jurisdictional residence requirement when at least three months have elapsed, including any part of the absence, from when the applicant first established that residence. ^"

"If the applicant establishes residence in a different state or service district from where he or she last resided, the applicant must reside three months at that new residence before applying in order to meet the three-month jurisdictional residence requirement."

 

[AnnaMaria 68]

You'e correct. That situation only applies to us because we had been gone for 4 months meaning we have to wait 3 months to file for naturalization. My mistake.

[Unknown Guest 15]

turns out the family business may require my wife to be take multiple 1 month long trips every other month.  so...1 month in China, then 1 month in the U.S., followed by another month in china, then back in the U.S. for 1 month....so on, so forth...  We are not really concerned about naturalization at this time.  just the ability to live in the U.S. and maintain the green card.

[nightingalejules 678]

4 minutes ago, Unknown Guest said:

turns out the family business may require my wife to be take multiple 1 month long trips every other month.  so...1 month in China, then 1 month in the U.S., followed by another month in china, then back in the U.S. for 1 month....so on, so forth...  We are not really concerned about naturalization at this time.  just the ability to live in the U.S. and maintain the green card.

You should be fine, honestly. Especially with it being a month in, a month out, with your wife's ties to the US, it's pretty clear that she's living in the US. She may occasionally get pulled into secondary inspection, but she would then be given a chance to explain what's going on. Just make sure she leaves lots of extra time at the airport so she doesn't miss a flight.

[Going through 5,671]

2 hours ago, Unknown Guest said:

turns out the family business may require my wife to be take multiple 1 month long trips every other month.  so...1 month in China, then 1 month in the U.S., followed by another month in china, then back in the U.S. for 1 month....so on, so forth...  We are not really concerned about naturalization at this time.  just the ability to live in the U.S. and maintain the green card.

The frequency of the trips abroad at a month at a time might raise some issues depending on the officer you get at the border when she is reentering the US each time....they may presume she's setting up residency in both countries, if she's leaving the US every other month, for 3 to 4 weeks at a time.

 

All she can do is maintain strong (documented) ties to the US and hope for the best during inspection every other month.

[mindthegap 2,590]

3 hours ago, Going through said:

they may presume she's setting up residency in both countries, if she's leaving the US every other month, for 3 to 4 weeks at a time.

 

That isn't prohibited though....as long as the US remains the aliens primary place of residence with proof of sustained significant ties to back it up.

[Nitas_man 3,100]

9 hours ago, Unknown Guest said:

So my wife has some family business issues that require her to go back to China for an extended period of time.  We don't want to risk abandonment of her greencard.  I know technically they say you can't be outside of the U.S. for more than 1 year, and there is also an unofficial rule of no more than 6 months abroad. 

 

When do they start counting the 6 months?  per fiscal year? beginning Jan. 1, 2017?  or since the last trip?

Does that mean 6 months straight during 1 trip? 

or can she break it up like 5 months in China, return to U.S. for 2 months + another 4 months in China = total 9 months out of the year?

or does it mean that the total can't add up to more than 6 months in the year?

 

I also know that "intent" to maintain residence in U.S. is necessary to not be considered "abandoned", we have a house under my wife's name + 1 child together.  Child will remain in U.S. most of the time.  Is that suficient to maintain "intent" to maintain US residence?

 

Any advice would be greatly appreciated.  Thanks

 

If you apply for a travel document (a booklet that looks like a passport) she can stay out of the US for up to two years worry-free.  The travel document can be renewed when it is close to expiring.

After 6 months when she returns she is effectively applying for re-entry.  My wife stayed out 11 months one time and we were questioned at the counter but she didn't go to secondary or anything.  We were travelling together though. 

 

https://www.uscis.gov/i-131

 

It's easy.  Once they receive the form they will schedule biometrics and after she takes biometrics she can go.  On the form it advises that you can have it sent to the nearest embassy or consulate.  The only risk of leaving early is if the biometrics fail.

[Going through 5,671]

8 hours ago, mindthegap said:

That isn't prohibited though....as long as the US remains the aliens primary place of residence with proof of sustained significant ties to back it up.

Never said it's prohibited....only that an officer presuming it at the border may cause her some hassle when reentering if the OP is travelling out of the US every two months (and leaving for a month at a time) once they see travel history when scanning the green card.  All depends on the officer she gets and how stringent he/she wants to be....one may not care, another may question her.

 

 

Edited November 14, 2017 by Going through