PRESERVING PERMANENT RESIDENCE –
PROCEDURAL AND EVIDENTIARY CONSIDERATIONS
To properly protect one’s rights as a permanent resident, it is important to understand how procedurally a challenge to permanent residence might develop, and what evidence could be used to establish continued eligibility.
WHEN A CHALLENGE MAY OCCUR
The Immigration Service generally does not take the initiative to verify the status of permanent residents and to challenge their status. Usually, an affirmative act on the part of the individual is required. The most common situations are as follows:
1. Inspection upon admission. When an individual seeks entry into the United States, he is examined by an Immigration Inspector, who may examine documents such as passport or airline ticket to ascertain how long the individual has been out of the United States on a particular trip or series of trips. This could trigger a more detailed inspection to determine eligibility and entitlement.
2. Application for Re-Entry Permit. An application for a Re-Entry Permit is reviewed both for its content and its relation to the actual Immigration file. If an application for Re-Entry Permit is denied, border posts might be notified to examine upon subsequent entry into the United States to determine eligibility for continued residence.
3. Application for special immigrant visa. An alien whose green card is not valid for admission because of an absence of more than one year, and who does not have a valid Re-Entry Permit, may apply for a returning resident visa as a special immigrant. This application is made at the United States Embassy or Consulate, where a determination as to continued eligibility for permanent residence would be made.
4. Naturalization. Upon application for citizenship, the original Immigration file is located and reviewed, and absence out of the United States subsequent to obtaining permanent residence are examined. A determination as to loss of residence might be made.
5. Visa petitions. If a permanent resident files a petition for a non-U.S. citizen spouse or unmarried child, the status of the green card-holding petitioner might be reviewed.
EVIDENCE
On any challenge to permanent residence, the applicant will be called upon to produce explanation and evidence so that a determination can be made as to whether permanent residence has in fact been preserved. Among the factors considered are as follows:
1. The green card holder’s purpose for departing from the United States. Specific reasons for leaving the United States, such as to pursue education, professional training, or employment for a definite period of time (particularly for a United States employer) suggest a temporary departure.
2. Ties to the United States. A green card holder must intend to return to the United States, to live or to work, and must maintain this intention during the course of his stay abroad. The following activities all tend to substantiate an intention to reside in the United States:
(a) Maintenance of active bank accounts in the United States (preferably with United States incorporated banks, rather than United States branches of foreign banks).
(b) Maintenance of United States credit cards and charge accounts.
(c) Ownership of property in the United States.
(d) Maintenance of a United States driver’s license.
(e) Maintenance of religious, professional and social club memberships in the United States.
(f) Travel to, and presence in, the United States as often as is feasible for a long a period of time as possible.
(g) Maintenance of a United States post office box. Services are available to forward mail sent to such a post office box. It is also a good idea to obtainpersonal stationery and checks for United States checking accounts which indicate the post office box as one’s address.
(h) Possession of a United States social security card.
(i) Minimization of contacts tending to indicate residence of a permanent nature in the country of present residence. The contacts described in (a) through (h) above should be minimized to the extent possible in all countries outside of the United States.
3. Statements in documents. Statements or residence on various official and semi-official documents including wills, customs forms, passport applications, insurance policy applications, and court pleadings, are all evidence of a green card holder’s intention regarding United States residence.
4. Other factors. Administrative practice at some Immigration posts and by some Immigration Judges allow discretion to permit a green card holder to demonstrate through actions subsequent to the last entry that he or she now intends to remain in the United States permanently. Evidence as to one’s intent to reside in the United States count, under these circumstances, even be established between arrival at a United States port and a latter hearing ordered by the Immigration and Naturalization Service. This is the so-called “last chance doctrine”.
CONCLUSION
The process of determining whether permanent residence has properly been preserved is complex and unpredictable. Immigration Examiners are called upon to make quick judgements on limited information. To complicate matters further, the Examiner’s knowledge of this subject varies greatly from post to post and from officer to officer.
It is therefore especially appropriate that any individual who travels frequently or is called upon to remain out of the United States for substantial periods of time prepares very carefully and thoroughly for a possible examination on this issue.