Many Jamaicans have been given the opportunity to have their spouse or a close relative who is a United States of America (USA) citizen or Lawful Permanent Resident (LPR), popularly referred to as a green card holder, make an application on their behalf for a green card with the United States Citizenship and Immigration Services (USCIS).
Usually once the application process is completed and approved by the USCIS office a green card is issued to the beneficiary within a month of arriving into the USA and that beneficiary now has an LPR status.
A beneficiary issued with a green card must preserve their LPR status for at least five years before being eligible to make an application for USA citizenship. To make a citizenship application that person must also be resident and physically present in the USA for no less than two and a half (2 ½) years immediately preceding the presentation of the application.
However, preserving the LPR status and remaining in the USA for the required period can be difficult because of job obligations, business opportunities, spousal obligations, a sick parent or caring for a minor child, to name a few.
These obligations can cause a person with LPR status to be outside of the USA for lengthy periods per year, which puts them at risk of being deemed by USA authorities as having “abandoned” their green card.
This is particularly so where there are multiple prolonged absences from the USA or after being given a prior warning by a USA Customs and Border Protection (CBP) officer at a USA airport or border.
SIX MONTHS’ RULE
There are many myths about how long an LPR can stay outside of the USA before their LPR status is considered to be at risk. However, the general rule is that a person who holds LPR status and take trips outside the USA that are not “temporary” can lose that status.
Unfortunately, there is no specific definition given for the meaning of “temporary”. However, immigration practice has developed what is commonly referred to as the six months’ rule. This rule states that a green card holder, if he or she has been abroad for less than 180 days, is not required to apply to CBP for “admission. In other words the CBP officer will generally ask no questions of a green card holder who has been outside of the USA for less than six (6) months.
The six months’ rule, however, is only one consideration and by itself may not be enough to determine whether the stay outside the USA was “temporary”.
For example, a person with LPR status who travels to Jamaica because of family commitments or a job and reside there but is careful to enter the USA for short periods every five (5) months, may nevertheless be considered to have abandoned his or her green card in spite of maintaining every trip to Jamaica under six months. This is because the determination of whether an LPR’s status is maintained is subject to the discretion of the CBP.
A CBP officer may determine a prolonged period of absence from the USA to only be “temporary” where a “continuous uninterrupted intention to return” to the USA can be demonstrated.
Since it may be difficult for a CBP officer to determine the true intent of the LPR holder other considerations such as the strength of their ties in the USA versus their ties abroad may be considered.
These are a few questions, among others, a CBP officer may ask upon arrival at a USA airport or border to make that determination:
* Where have you been outside the USA?
* For how long?
* What were you doing there?
* Why are you coming to the USA now?
* What ties do you maintain in the USA during your absence?
* Where do you own or rent property in the USA?
* If you own or rent property in the USA, do you have access to it and are your belongings in it, or have you rented it out to somebody else?
* Where do you work or go to school in the USA?
* Do you have close relatives in the USA?
* Where do you maintain your key assets (eg, bank accounts, credit card accounts, cars, insurance)?
* Do you file income taxes each year in the USA?
* Do you have a valid USA driver’s licence?
A green card holder who is outside the USA for prolonged periods upon entering the USA should always be prepared with supporting evidence to answer the above and other related questions that a CBP officer may ask as the burden is on them to show they are entitled to be admitted.
While physical presence in the USA for most of the year is the best way to protect the LPR status, this may not be possible. If so, an LPR may have to consider making an application to USCIS for a re-entry permit if:
(a) likely to be abroad for one year or more;
(b) likely to be abroad for more than six months continuously for two or more years; or
(c) have already received a warning by CBP that they are at risk of abandonment.
This application should be made by the LPR while in the USA and prior to the intended prolonged trip outside of the USA.
A re-entry permit is usually valid for up to two years but there is no guarantee that a permit holder will be able to enter the USA if their stay abroad was for a different purpose than what was initially stated in the application for re-entry.
A permit holder must therefore always be prepared to provide evidence that accord with the purpose initially given for their prolonged stay outside the USA upon request from a CBP officer at the point of entry at a USA airport or border.
Venice Williams-Gordon is an attorney-at-law. She can be contacted at vwilliams@ lswlegal.com .