Separating from US spouse. Reentry Permit? Guidance.

[meintheusa123 0]

Hi all,

 

I'm a PR, with my 10 year GC good until 2024.

 

I am separating from my US spouse, and going back to Canada on the 31st.

 

I want to keep my status in the US, so I just want to make sure I follow the rules and know what I'm doing.

 

My next planned visit at this time to the US likely won't be for 4-6 months. 

 

Questions:

1) I will obviously update my address with USCIS to my Canadian address. Will this trigger any red flags?

2) Do I need to notify USCIS in any way that I will be taking a longer than average trip out of the U.S.?

3) Should I apply for reentry permit before I leave? I am well aware that I should have done this sooner, but 60 days ago, I wasn't separating from my spouse (see 3.b)

a. From what I understand, if I am out of the US for less than 1 year, I do not need a permit, and can rely on my GC (however this may look suspicious to USCIS/CBP)

b. I also see that I need to be in the US to file, and file no less than 60 days before my date of travel for my reentry

 

My basic understanding is this: If I leave on the 31st, come back to visit once or multiple times (to see friends, spouse, whatever) within 6 months, that looks better than waiting a year (minus 60 days) to visit and file for reentry.

 

Let me know what you think. Thank you.

References:

https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization

https://www.uscis.gov/sites/default/files/USCIS/Resources/B5en.pdf

[aleful 1,905]

 

the question is where do you plan to live? In Canada or in US. Will you be visiting or living in Canada?

 

the GC is for living here, not to be used as a tourist visa

 

if you don't plan to live in the US, then surrender it and come to visit anytime as a Canadian

 

reentry permit is only for extended periods of time out of the US. for example, if you are studying and it will take you 2 years or 4 years abroad, then you get a reentry permit to not loose your GC, but at a certain point you will return to live in the US or you will loose residency anyway

[Mollie09 1,543]

Regardless of time spent outside the US, if it looks like you moved back to Canada (no US address or ties, job in Canada, provincial health insurance) you can be deemed to no longer be a US resident and your GC can be revoked.

[acidrain 325]

I was under the impression this issue has to do with domicile (ties to US) and residency. I watched US Border Security and a Ukranian woman had her green card taken away when she tried to re-enter the US as she was no longer considered a resident (she too had separated from her husband). Residency and domicile can be quite subjective as someone can still be considered a resident who has spent months outside of the US. An example could be if someone has a sick elderly parent who has to be looked after and they left the US to care for them. However, that person would be able to show a possible job to go back to, a home and other ties. As a border official explained to me think of snowbirds who travel south for the winter. Their intentions are only to visit the US temporarily and everything from their banks, investments, house insurance, doctor, dentist, etc. is all based at home. Your home is determined by where your strongest ties are.

 

The risk you run into is the fact your ties to the US would not be strong if you move back to Canada. The US is very particular on domicile which is the number one reason why Canadians get denied green cards. They do not want to give rights to foreign citizens including a pathway to citizenship if they are not residents. I am sorry you have to go through a marital separation as I would imagine that to be quite stressful.

 

Unfortunately the US and Canada share a great deal of information. As others have pointed out if you start signing up for things like car insurance, health insurance, having a job in Canada it will look like you have abandoned your US residency which then nullifies your green card. I am unsure if there is a rule by x amount of days spent outside and who makes the determination whether you are still a US resident.

[geowrian 22,337]

8 hours ago, acidrain said:

I am unsure if there is a rule by x amount of days spent outside and who makes the determination whether you are still a US resident.

Over 1 year abroad has a presumption of abandoning residency. Beyond that, they look at the totality of the circumstances. For instance, somebody who only spends a month or 2 in the US per year (but never over 12 months abroad) is likely to have his residency questioned.

 

A re-entry permit just means they cannot use the time spent abroad as the sole determining factor in abandonment of residency. If somebody actually establishes residency elsewhere, their residency can be questioned.

CBP makes the determination and typically either 1) allows the LPR to relinquish their green card and LPR status, or 2) present their case to an immigration judge to make a ruling.