My mom got her green card in 2005 and since then these were her entries in the United States:
March 20th, 2005 until July 15th, 2006
April 14th, 2007 until May 5th, 2007
February 27th, 2008 until April 27th, 2008
September 28th, 2008 until December 4th, 2008
The last time she entered the United States(September 28th, 2008), the immigration officer wrote something on her passport…”out these many months…something something………of residency requirements”. I have given it to quite a few people to read but the handwriting is really indecipherable.
My mom has a thyroid problem and she needed medical assistance but since back home it is free, she decided to go there and have the problem taken care of.
Now, if she wants to come back in October, is she out of status? What can she do not to lose her green card? I’ve heard so many stories and at this point I don’t know which one to believe and I would hate her to travel for so long (she’s 60 years old) and to be sent back after such an exhausting flight.
Thank you very much!
3 Answers from Attorneys
If a legal permanent resident is out of the U.S. for 1 year or more, the USCIS may consider her abandoning her green card. Usually, a green card holder who plans to leave the U.S. for 1 year or more must file for a re-entry permit, so that there is no appearance of abandonment of their green card.
There may be a chance that they consider her abandoning her green card, based on the period between 2005 and 2006, where she was out of the U.S. for more than 1 year, assuming that she did not apply for re-entry permit then. However, if they did not give her any notice of this, and she entered and left the U.S. multiple times after that, there is a chance her green card will still be valid and not abandoned when she returns in October. It is hard to say for sure.
However, if her status is considered abandoned, she has the right to a hearing to prove her intentions were not to abandon her permanent residency.
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Because your mom as a permanent resident has been out of the U.S. for more than six months but less than a year on each of her trips, there is a presumption that she intended to give up the permanent residence on departures, but this can be overcome since she intended for her departures from the U.S. to be temporary when she left. Temporary medical treatment that's cheaper elsewhere shows temporary intention at time of her departure, not an intention to return to her former residence forever. There is even authority in the Foreign Affairs Manual (FAM) that would help this point.
Also, I'll bet she has other proof that she planned on returning to the U.S. each time she left. This case will be built on evidence of her intention to return to the U.S. when she left the U.S. each time, as well as proof that seeking medical treatment in another country is viewed as a temporary reason to be there (point borrowed from the FAM). Since both these and other proofs of her life (in the U.S.) can show intention to return here at time of departure, I believe strongly that the presumption can be overcome and that if she has proper documentation with her as she travels, she should not have a problem. Being a permanent resident in the U.S. doesn't mean you have to be here all the time. It means you must intend to return here to the home you view as your permanent home, at the time you depart, with the understanding that travel abroad can sometimes be longer for reasons, such as health, that she could not control.
One thing amongst several I'd do is apply for a Re-entry Permit to allow departure up to two years. I would also have her provide to me certain other documents that I'm sure she has here that would substantiate her case. If hired by her, I would put a package of all her proof together with an explanation of her life story concerning this issue and an explanation of the law so the admitting officer will have no problem understanding her qualification for permanent residence.
What was written on her passport probably just brings the issue to the attention to the admitting officer for next time, again, if she can prove her case, that notation doesn't matter.
I would be happy to help you out if you contact me offline. Check me out at http://www.yardum-hunter.com, phone at 818 609 1953 or email me at [email protected] Until then, please don't rely on this as legal advice.
Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization
A “Super Lawyer” 2004 – 2009, Los Angeles Magazine
Departing the U.S. for longer than 6 months but less than 1 year consistently over a period of time, is generally a 'red flag' for the government that the permanent resident is no longer intending to reside in the U.S. It is important that your mother provide proof that she intends to continue to reside in the U.S. by providing proof of her residency in the U.S. and also providing significant proof that she needed to be abroad for specific medical reasons. I would be happy to assist her in preparing the proper material. She should also prepare a Re-Entry Permit so that this won't happen again. Please phone to make an appointment at 415-387-1364 or email [email protected]