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timiny74 Jul 24th 2001 2:06 pm

If one were to get a greencard (2 or 10 year) through AOS and 1 year later this person and her husband were to move abroad how long could the greencard be used to enter the U.S.?
For example, suppose the couple moved abroad but 4 weeks later they had to fly back to get some things or take care of some business. Would the INS flag this greencard as invalid? AFAIK, you don't report to the INS that you are leaving the country and hand the greencard in, no?
Suppose, 3 months or 6 months later after living abroad they came back for a visit, would the greencard simply allow entry, or would the foreign spouse need a visa waiver or visitor's visa? I'm just curious how the INS handles these cases where a greencard holder moves permanently back to their country and how long it takes INS ot realize that the couple is no longer living in the U.S.?
Thanks.

Ameriscot Jul 24th 2001 2:54 pm

You can spend up to a year out of the US and keep your green card. If you plan to spend between 1 and 2 years abroad, you can apply for a re-entry permit from your local INS office in the US. Beyond 2 years, you lose the green card.

If the USC spouse is moved abroad by their American employer, then the foreign spouse can apply for immediate naturalisation, even if they don't meet the 3 year residency requirement, if this is something that interests you.

Rete Jul 24th 2001 3:42 pm

I don't know if the above advice applies if one who holds a green card has re-established residency in their own country or in another country. It is my understanding that re-establishing residency outside of the US will invalidate your green card and of course stop your naturalization clock. A green card is for the purpose of establishing and maintaining residency within the US. To leave the country of your own volition, set up a household and take employment or benefits in a country outside of the US and the paying of taxes on a residency basis to a country other than the US clearly indicates to the INS that one has abandoned their green card.

This is what has been explained to me by an immigration attorney when we asked about my Canadian husband returning to Canada for six months or more per year. It was suggested that he obtain US citizenship first before returning to live, even part time in Canada, since I will not be assigned there to work as a USC which would enable him to come with me without abandoning his green card.

Rita

Ameriscot Jul 24th 2001 4:07 pm

Rita,

I think it has very much to do with your intentions. If you intend to return to the US, and indeed consider that your long-term home, there is no problem. Clearly if you plan or do return to the US within a year, then it's hard to see how you have abandoned your US residency.

This intention is something that the INS considers when you apply for the re-entry permit, and there is no guarantee that they will approve this. From memory, I think you need to show that you are maintaining contact with the US - bank account etc - while abroad; and they will also look at the nature of your residency abroad (does it look like you are there temporarily or permanently). You also need to file a Federal (and I believe State and local) tax returns as a permanent resident abroad. If you don't do this, then you've basically abandoned your US status. BTW, I meant to mention in my first post that the re-entry permit covers your second year out of the US. You can apply again for a re-entry permit for a third year, but the chances of this being approved go down dramatically.

The issue with getting US citizenship just so that you can live abroad indefinitely while maintaining the rights to resettle in the US is that you are liable for US taxes. Depending on your individual circumstances, this may not cause you any grief whatsoever, but I think it is worth understanding the implications before taking this one-way trip.

If you move to a country that doesn't have a fast track back to the US via the DCF process (and Canada is in this category), then naturalization is undoubtably very attractive. If you are going to a country where you can DCF in a few months or less, then it's not as crucial.

Rete Jul 24th 2001 5:25 pm

I don't think you are really following what I am saying. Aren't you the gentleman who has multiple citizenships? US, Canadian and English? Any others? Why did you become a Canadian citizen?

I bow to your great knowledge on many things but I will debate you on the premise of what constitutes residency in a particular country. INS and Canada for that matter both say residency is spending 183 days in one particular country. You might be able to leave the US and Canada for over that length of time but as you pointed out in the US you need a re-entry permit and in Canada you need a RRP.

Yes INS and at times the US Consulate have the authority to determine if you are entitled to a re-entry permit. I would stand by the premise that anyone who is a green card holder or has landed residency in Canada who is out of the country for 183 days, who is gainfully employed in another country, who has filed for re-residency in that country if it is their native country, has clearly shown that they no longer have a desire for a green card, does not wish to make the US their country of residency and should be stripped of their green card status and denied a re-entry permit. A green card should not be a revolving door to be used by a person when and if they have a desire to change locations.

Rita

Ameriscot Jul 24th 2001 8:32 pm

No, I only have one citizenship - British - and I am female.

I believe, and this is based on a very long letter from my immigration attorney about the dos and don'ts of US permanent residency, that the first year out of the country doesn't have any restrictions.

The INS doesn't care until they review your application for a re-entry permit. Whether the fact that you are returning to your country of prior residency lowers your chances of having your permit approved, I don't know. I wouldn't be surprised if it weakens your case somewhat.


timiny74 Jul 25th 2001 5:47 pm

This is an interesting discussion. My main interest lies in this less than 1 year scenario that Ameriscot talks about. If you pack up your bags, ship everything to the new country you'll be living in, by a house there, start a job there, etc. you are no doubt no longer going to be a permanent resident of the U.S. But I'm mainly concerned with at what point does the INS know or care about your move and will "call you" on re-entering? I guess the safe thing to do in this scenario, even if it were only 1 month after you moved is to simply fill out the Visa Waiver form (as I'm talking about the UK in my case) but I'm thinking that the INS probably would not know that you have moved abroad...how would they know unless tax time has passed and they knew that you didn't file taxes, etc.
As for DCF, I believe the UK will do this as long as the American citizen has been a resident of the UK for at least 6 months, so I imagine getting the greencard again would only take a couple months at the longest, right?
It'd be interesting to know if Rita or Ameriscot is correct about the 183 days vs. 1 year thing. I could see a situation where a greencard holder has to return to his home country for more than 183 days but less than 1 year because of some family crisis or maybe even some half year course they want to take in their home country or something of that nature. Would the greencard holder have abandoned their permanent residency even if they fully intent to come back right after the situation in their home country was finished?
Thanks,
Matt

Sue Jul 25th 2001 6:26 pm

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In my experience when re-entering on a green card (and I have done this several
times) the immigration officer at the POE asks one question 'How long have you been
out of the United States?' (That is the _only_ question I have been asked since
getting I-551 stamp and actual green card). Your answer had better be truthful
because while you tell him/her the answer, he/she is looking at their screen which I
bet tells them when you left. I have had no further questions at entry and no
problems, on absences ranging from a few days to up to a month. YMMV.

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I think Visa Waiver is irrelevant to greencard holder. Visa Waiver is for non-US
citizens without a visa or for non-US-residents, it is not for US residents (which
you are if you have a green card).

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They may certainly know when you leave. I have had to show my green card when
checking in at US airports (BA, American Airlines etc). The checkin staff know you
have (should have) a greencard or an I-551 when they see your passport.

Cannot comment on DCF. You might get the re-entry permit application form &
instructions and see what they states. I heard (from an immigration lawyer) that
when applying for removal of conditions you will be ok so long as not out of the US
for more than 1 year of the 2 years would cause problems though I don't know what
exactly ie would removal be denied, at the least it may mean an interview which
might not otherwise have occurred and a few awkward questions. (That being 1 year
accumulated time ie several trips out could add up to over 1 year and so you need to
keep track of them).

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If the situation may be open-ended, why not apply for the re-entry permit anyway ?
But I thought a re-entry permit was necessary for absence over 1 year.

Just my experience and what I was told. May be completely irrelevant and
contradictory to others experiences.

Rete Jul 25th 2001 6:44 pm

The 183 days is for the establishment of residency. YOu can vacation outside of the US for more than 183 and still be a resident. The crux is where you have your living quarters, pay taxes, etc.

As for you, you will be returning to the UK with your USC wife. You will have to file for residency for her to live there with you. If you do, than you have established your new residency as the UK and have removed your permanent residency from the US.

When it comes to paying taxes, i.e. for Canada, you have to either pay taxes as a resident or a non-resident. In order to be considered a non-resident in Canada, you have to complete a form and then the Customs/Taxation of Canada (which sucks big time btw) will tell you what they decide ... are you or aren't you? It is up to them.

Rita
Who may be many things but is not stupid, ignorant or foolish enough to believe that INS does NOT share information with the rest of the world on its immigrants.

Rete Jul 25th 2001 6:50 pm

Sorry for the assumption of your multiple citizenships. There is a poster here who does have US/CAN citizenship and is quick to point out his superior knowledge.

Your attorney's advice and what I adviced I have received from our consultation immigration attorney (no, not Matt) and what has occurred to someone's relative in my office, contradicts your attorney's advice.

I was advised the way I have been posting and experience of another tells me this is supported by the INS.

A cousin of a co-worker went back to Israel to see her dad before he died. She was a green card holder. She remained in Israel after the funeral to help out her mother and was gone from the US for 8 months total. The US Consulate refused her a re-entry permit telling her because of the length of her stay outside of the US and the facts that she was renting a furnished room, had a part time job, she had abandoned her pr status. It took the intervention of a US Immigration attorney and a congressperson to get this lady back into the US and have her green card re-instated.

Rita


Ameriscot Jul 25th 2001 7:35 pm

The 183 day thingy is the IRS significant presence test (SPT). As far as the US is concerned, you are taxed on your worldwide income as a citizen or green card holder. As a non-resident alien, if you meet the SPT then you have to file a tax return. If you don't then there is no need to file a US tax return. In your case, it doesn't really apply because you are liable for US taxation no matter how many days you spend in the US. I don't see where 183 days comes up at all for the INS.

When you are in the UK, you basically have to file a US tax return because one of you is a US citizen. It is just as easy to do a joint return, and therefore you won't abandon your green card through lack of tax filing.

When I was living in the UK as a green card holder, I returned to the US for a holiday after about 10 months - there wasn't any problem at all at the POE. I went through the citizen channel etc and no one batted an eyelid (granted there was a lot less computerisation in those day and I had a hard-back black passport).

In order to move back to the UK, your US citizen spouse will need to secure a marriage settlement visa for the UK. This visa should be sufficient to allow you to do DCF, should your stay in the UK exceed the time allowed by the re-entry permit.

On the INS site, here's what it says about re-entry permits:

"Lawful permanent residents or conditional permanent residents who wish to remain outside the United States for more than one year, but less than two, require a reentry permit. A reentry permit is not required for a trip that is shorter than one year."

I think this is fairly clear that they don't care why you are outside. If you present yourself back for residence within a year, then clearly your intentions are compatible with holding a green card. I think there is a problem with basically living abroad longterm, returning every year for a week or so to activate the green card, though.



Ameriscot Jul 25th 2001 7:47 pm

Rita,

It is possible that your Israeli friend was denied a re-entry permit because she was already abroad when she applied for it. One of the rules of the re-entry permit is that you have to be in the US when you apply.

I found this on the I-131 instructions, which also re-iterated that it is not necessary for stays abroad of less than one year.

http://www.ins.gov/graphics/formsfee...iles/i-131.pdf


Rete Jul 25th 2001 8:07 pm

What appears to have us at loggerheads here is the definition of residency.

To me, if the original returns to the UK, takes along his USC wife, rents an apartment, finds a job, opens a bank account, moves his household items from the US to the UK, he is giving up his residency in the US. At least this is how it looks to me, a plain ordinary citizen of the US.

If, however, he and wifey-poo continue to own a home or rent an apartment in the US, have an active US bank account, and decide to vacation throughout the world for a year or more, than they have not given up their residency in the US but are part of an elitist social group.

Now I can go and live in Canada (if I can make it across the border) without having landed status. I can stay there for up to six months or a cumulative six months in one year but I have no residency there. I can't work. I can't get Canadian healthcare. I won't be pay taxes as a resident, etc. I will be in essence a USC vacationing in Canada.

As for the I-131, it is great information, but it is only the tip of the iceberg in terms of information and variances. INS and the US Consulate still have the discretionary right to decide if you are eligible for re-entry or if you have abandoned your green card.

So I guess we are at a stalemate for I don't see that any of the information you've provided invalidates what I have tried to say about what constitutes residency.

Rita




Ameriscot Jul 25th 2001 8:38 pm

I've said the limit of my knowledge in this area.

timiny74 Jul 25th 2001 8:43 pm

>>
As for you, you will be returning to the UK with your USC wife. You will have to file for residency for her to live there with you. If you do, than you have established your new residency as the UK and have removed your permanent residency from the US.
>>
I see what you mean, but let me throw a scenario at you given this and also given the tax return point taken up in this thread. The argument is that if you leave the US for more than 183 days, take residence abroad, open a bank account, buy or rent a house, etc. and file taxes showing your address abroad then the INS would view this as you giving up US residency.

But my question has more to do with when does the INS actually *realize* that you are living abroad and flag you in their system as no longer being a permanent US resident?
Let me give you a for example:
I receive my tax forms in February as a greencard holder living in the U.S. I fill them out, send them in, get my rebate or pay my taxes owed in March and my IRS tax return contains my U.S. address at which I'm living. I decide to move to the UK on April 1, go through UK immigration (I doubt the US knows that you are going through UK immigration?) and live in the UK, get a job, open a bank account, all that schmeal. November rolls around and it's been more than 183 days that I've been abroad. I decide that I want to go on a vacation for a few weeks or a month in the US. I have not filed US or UK taxes yet because it's still only November, tax time has not rolled around again. I go through Customs and I show the officer my greencard saying I'm a permanent resident.
My question is, Will the officer know that I'm no longer living in the U.S. and say that my greencard is no good? Or will he not be the wiser? When does the INS actually figure out that I am no longer a permanent resident? As far as I know I don't have to send them my greencard back, nor does UK immigration have to tell the INS that I've been seeking UK permanent residency. It has been less than 1 year. Does INS simply notice that I've been gone more than 183 days and ask me if I'm still living in the U.S.? How about if I came back before November and it's only been a month or two or even less would the INS realize that I am no longer living in the U.S.? Could I just keep coming back to the U.S. every 3 or 6 months and would the INS officially realize that I'm no longer a resident and how would they most likely pick up on that, given that hundreds of thousands of people fly into the U.S. every year?
Thanks,
Matt


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