Overstaying Green Card Holders
Once a person gets his green card, he should maintain his legal residence in the US or else risk losing his GC status. A green card (GC) holder who resides in the Philippines might be found to have abandoned his permanent resident status and will not be allowed entry to the US again using his green card.
Under US immigration law, as well as Philippine law, legal residence means the place where the person intends to permanently reside. The US immigration law enforcers follow guidelines in determining whether a GC holder resides in the Philippines, therefore abandoning his GC status. The following are the rules:
Abandonment is presumed if the GC holder stays outside the US for more than 1 year.
There is no abandonment if GC holder is outside the US for less than six months.
An inquiry on "evidence of ties" shall be conducted if GC holder is outside the US for more than 6 months but less than 1 year.
In the said inquiry, the GC holder faces the possibility of being found to have abandoned his status. He must explain to the US immigration officers why he stayed in the Philippines for so long. He should expect probing questions regarding his activities in the Philippines for the whole duration of his absence from the US. If the officers discover that the GC holder, for example, has a stable job or made huge investments in building his family home, he might be found to have abandoned his GC status, therefore confiscating his green card. Absent any evidence of compelling ties in the US, a stable job or a family home are just one of the few indicators that one has the intention of residing in the Philippines.
But by showing compelling ties in the US, a GC holder can rebut this presumption of abandonment. He should maintain documentary proof of his residence in the U.S., or show evidence that he truly intends to reside in the U.S., such a, but not limited to maintaining a U.S. address, continuing using U.S. credit cards, maintaining bank account in the U.S. etc.
4. There is no presumption of abandonment or inquiry on "evidence of ties" if re-entry permit has not yet expired. A re-entry permit must be applied for and received by the GC holder prior his departure for the Philippines. He cannot apply for the permit when he is already here in the Philippines. A re-entry permit can have a maximum of 2 years permissible stay outside the US.
A GC holder will never know whether he has abandoned his status unless he attempts to return to the US using his GC. But once a GC holder is denied entry, his only recourse is to file an application for a returning resident visa with the US embassy in Manila. He has to explain to the consul, as well as show supporting documents, that his stay here in the Philippines was merely temporary. However, the non-refundable application fee does not guarantee an approval.
Another effect of abandonment is also the automatic revocation of petitions filed by the former GC holder in favor of relatives in the F2 category (spouses and unmarried minor children of GC holders). Of course, abandonment also abandons the dream of being naturalized as a US citizen.
The above article merely serves as general information that may or may not apply to your case, as each case is different and should be considered on a case-by-case basis. It is recommended to seek the advice of a US immigration lawyer who can best analyze your (or your relative's) situation and appraise you on how to preserve your green card. The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Atty. Paolo A. Claudio is a member of the Philippine Bar and New York Bar. As a New York lawyer, he is authorized to practice US federal law, including US Immigration law. If you have specific questions on your case, feel free to contact him at Globex Immigration Alliance Services, globexia@gmail.com, mobile: 09177009823, website: globex.justia.net
Under US immigration law, as well as Philippine law, legal residence means the place where the person intends to permanently reside. The US immigration law enforcers follow guidelines in determining whether a GC holder resides in the Philippines, therefore abandoning his GC status. The following are the rules:
Abandonment is presumed if the GC holder stays outside the US for more than 1 year.
There is no abandonment if GC holder is outside the US for less than six months.
An inquiry on "evidence of ties" shall be conducted if GC holder is outside the US for more than 6 months but less than 1 year.
In the said inquiry, the GC holder faces the possibility of being found to have abandoned his status. He must explain to the US immigration officers why he stayed in the Philippines for so long. He should expect probing questions regarding his activities in the Philippines for the whole duration of his absence from the US. If the officers discover that the GC holder, for example, has a stable job or made huge investments in building his family home, he might be found to have abandoned his GC status, therefore confiscating his green card. Absent any evidence of compelling ties in the US, a stable job or a family home are just one of the few indicators that one has the intention of residing in the Philippines.
But by showing compelling ties in the US, a GC holder can rebut this presumption of abandonment. He should maintain documentary proof of his residence in the U.S., or show evidence that he truly intends to reside in the U.S., such a, but not limited to maintaining a U.S. address, continuing using U.S. credit cards, maintaining bank account in the U.S. etc.
4. There is no presumption of abandonment or inquiry on "evidence of ties" if re-entry permit has not yet expired. A re-entry permit must be applied for and received by the GC holder prior his departure for the Philippines. He cannot apply for the permit when he is already here in the Philippines. A re-entry permit can have a maximum of 2 years permissible stay outside the US.
A GC holder will never know whether he has abandoned his status unless he attempts to return to the US using his GC. But once a GC holder is denied entry, his only recourse is to file an application for a returning resident visa with the US embassy in Manila. He has to explain to the consul, as well as show supporting documents, that his stay here in the Philippines was merely temporary. However, the non-refundable application fee does not guarantee an approval.
Another effect of abandonment is also the automatic revocation of petitions filed by the former GC holder in favor of relatives in the F2 category (spouses and unmarried minor children of GC holders). Of course, abandonment also abandons the dream of being naturalized as a US citizen.
The above article merely serves as general information that may or may not apply to your case, as each case is different and should be considered on a case-by-case basis. It is recommended to seek the advice of a US immigration lawyer who can best analyze your (or your relative's) situation and appraise you on how to preserve your green card. The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Atty. Paolo A. Claudio is a member of the Philippine Bar and New York Bar. As a New York lawyer, he is authorized to practice US federal law, including US Immigration law. If you have specific questions on your case, feel free to contact him at Globex Immigration Alliance Services, globexia@gmail.com, mobile: 09177009823, website: globex.justia.net