snodog

We are in the middle of an EB5 application, with my wife as the main applicant.
Once/if we are granted the conditional green cards, and enter the US, the plan is I will remain there (in a house we already own) and my wife will return to the UK to work in her business. She plans to work from our US home some of the time but will need to be in the UK a good part of the year for the forseeable future.

Will she need to apply for Advanced Parole to get back into the US once we land?
Is there a time frame for how long that application process takes?

Is there a minimum number of days that she will need to be in the US to be considered resident?
What other factors would we need to take into account to show she is residing in the US?

We will be going over these questions with our Immigration attorney but i was hoping for a "heads up" before we got that far.

Thanks

JAJ

To begin with, you need to discuss with your attorney the difference between advance parole and a re-entry permit.

Folinskyinla

Hi:

These are excellent questions. A complicated area, to be sure.

The only "heads up" I might give is to be careful not to conflate the rules on continuity of residence for naturalization with maintaining lawful permanent resident alien status.

Earlier this year, I had a case of an LPR who had been spending most of her time living and working in the Phillipines for the last four years. The aiport people just looked a the time and instituted removal proceedings based upon abandonment. Fortunately, the airport statement was quite detailed and she was asked about facts that showed, under the applicable law, that she had NOT abandoned LPR status and was in one of the few fact situations which allowed residence abroad with no firm date of return which did NOT result in abandonment. With the cooperation of Assistant Chief Counsel and the Immigration Judge, we had the case terminated in two months -- the quickest victory I ever had!.

Okachickima

Residence is defined in the Immigration and Nationality Act as "actual, principal dwelling place in fact without regard to intent".

meauxna

You might find this article from USCIS helpful; it explains your rights and responsibilities as a PR, including maintaining your PR status:

Now That You Are A Permanent Resident

pop

Is there any law or regulations that one must file a reentry permit I-131 if going abroad for more than one year, otherwise he will lose his LPR status? How does the law define the abandonment of LPR status?

Rete

read the instructions on the I-131

meauxna

Start with the link posted right above your question.

There is also a link to the law in this thread: http://britishexpats.com/forum/showthread.php?t=487735

Folinskyinla

Hi:

1st sentence -- no. A good idea, but still no.

2nd sentence -- 101(a)(20) of the Immigration & Nationality Act defines LPR status as having obtained it and such status not having changed. The mother BIA cases are "Kane" in 15 I&N Decisions 258 (1975) and "Huang" in 19 I&N Decisions 749 (1988).

An interesting case is United States v Yakou 428 F.3d 241 (CADC 2005) -- in that case the alien had left the United States and resumed his residence in Britain, stopped paying US income taxes and never renewed his green card once it expired. He also started traveling to the US on the VWP. The United States insisted that he remained an LPR since there was no formal abandonment of his LPR status. The Court of Appeals disgreed with the Government and held that he had abandoned.

BTW, this is a particularly complicated are of the law.

Folinskyinla

Hi:

But there is also a separate definition of lawful permanent residence which allows for LPR status even if one doesn't have a "residence" in the United States.

As I say elsewhere, a complicated area.

meauxna

MrF, I've followed your comments on this closely over the years, and I know there is no one definition. I also know that you had made this somewhat of a specialty but that you're not really shopping for clients now.
I like to tell people who ask that they should make sure to find an atty who knows about this complicated topic--do you have any tips for finding those specialists if I can't recommend you?

PS: I never thanked you for those Freeman links.. thank you.. it's very, very interesting (even w/out understanding the nuances)

Folinskyinla

Hi:

I've been moving my practice away from run-of-the-mill affirmative applications. However, I am interested in complicated legal issues [such as the K-2 "age-out"]. The abandonment issues are more along the lines of simple consultation BEFORE the fact, or of extensive janitorial work AFTER the fact. Abandonment is the type of area I try to concentrate on.

I usually get these cases from other attorneys.

pop

Most of people believe an I-131 reentry permit is necessary because of the instructions of the form saying so. However, no one can clearly explain what law or regulations that instructions are based on. The reason probably is no law actually provides the LPR must file a reentry permit to maintain his LPR status if going abroad for more than one year. The instructions are not law. If an LPR can prove he is strongly tied to the US after being out of the country for more than one year, will he be bared from reentry just because of no reentry permit filed? Has he been abandoned his LPR status just because of no I-131 filed?

meauxna

You could start here. I'll let you work backward if necessary.
http://www.uscis.gov/propub/ProPubVA...55c44d6ab2d56e

pop

So what? It states, “A reentry permit allows a permanent resident to apply for admission to the United States upon return from abroad during the period of the permit's validity without the necessity of obtaining a returning resident visa.”

It does not say without I-131, an LPR cannot reenter the USA if going abroad for more than one year. In fact, many people have reentered the USA without the reentry permit filed but proved strong ties to the USA. Do you really understand the question? Repeat it. If an LPR can prove he is strongly tied to the US after being out of the country for more than one year, will he be bared from reentry just because of no reentry permit filed? Has he been abandoned his LPR status just because of no I-131 filed but can prove strong ties to the USA?