Travel and Relocation Outside the U.S. After Getting your Greencard

Transcription

1 Travel and Relocation Outside the U.S. After Getting your Greencard

2 You are reviewing this presentation because You have a greencard (which means that you are a) 2 Lawful Permanent Resident or Alien Resident These terms all mean the same thing. (We will call this LPR-Status for purposes of this presentation.) AND You want to leave the U.S. For longer than 6 months For a long time, but you haven t yet decided how long For a long time, and there is no way at this point to tell if you will return Forever your plan is not to return to reside in the U.S.

3 And 3 You Want to Know You Need to Know Are there consequences to leaving the U.S. after receiving a greencard? And, if so: What are those consequences, and What can you do to alleviate or eliminate those consequences? What is LPR status? AND What happens if someone in LPRstatus is absent from the U.S.?

4 Agencies Agenda Overview of what LPR Status really is Documentation for Returning Residents Re-Entry Permits Process by which LPR Status is taken away Consequences of losing permanent residence Preserving eligibility for naturalization during absences from the U.S. 4

5 Agencies 5

6 Agencies 6 Department of Homeland Security U.S. Citizenship and Immigration Services (USCIS) Customs and Border Protection (CBP) Board of Immigration Appeals (BIA) Adjudicates visa petitions and applications - approves your greencard applications. Grants admission to people seeking entry to the U.S. (These are the people in the airports who interview you and stamp your passports). Decides immigration cases that are brought before it on appeal from USCIS decisions. DOS (Department of State) Operates US Consulates. Decides applications for returning resident visas

7 What is LPR Status Really? 7

8 Permanent Resident When people think of their greencard, they think they have a permanent status. 8

9 Permanent Resident But it is not your status that is permanent. It is your residence that is permanent. And it is not a permanent right to reside. It is a permanent obligation to reside. 9

10 Admission versus Return Admission means the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. There is no right to admission U.S.C. 1101(a)(13)(C); [INA 101(a)(13)(C)] The Immigration Officer at the port of entry decides whether you may enter, based on the documents you present and the information you provide. Lawful Permanent Residents (LPRs) are not admitted to the U.S. because they are returning home. Only people without a right to be in the U.S. must request admission. Usually Nonimmigrants are admitted. If a person (suddenly) lacks LPR status, then they (suddenly) must request admission. When an LPR s right to permanent residence status is uncertain, the immigration agencies will examine the circumstances to see whether the LPR has abandoned that status. This presentation examines the way by which an immigration agency will evaluate your circumstances to see whether LPR status has been lost, and if so, what happens then

11 LPRs and Admission An LPR shall not be regarded as seeking admission into the United States unless [the LPR] 11 (i) has abandoned or relinquished that status, [or] (ii) has been absent from the United States for a continuous period in excess of 180 days. 8 U.S.C. 1101(a)(13)(C); [INA 101(a)(13)(C)] These are two separate choices. Even without an absence of more than 180 days, you still might be determined to have abandoned or relinquished your LPR status.

12 References to LPR Status in US Law 12 lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States 8 U.S.C (a); [INA 211.1(a)] an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad. 8 U.S.C. 1101(a)(27)(A); [INA 101(a)(27)(A)]; 22 C.F.R (a) If a permanent resident left the United States on a visit that would not end for twenty years, the visit would not be permanent but it hardly could be considered temporary either. If Congress had intended to allow permanent residents to reenter the United States and retain their status after "all visits abroad that are not permanent" it could have done so. Congress chose instead to use the word "temporary," and we believe the usage contemplates a return within a relatively short period of time. Chavez-Ramirez v. INS, 792 F.2d 932 (9 th Cir. 1986)

13 Which means To retain LPR status while abroad, you need Domicile in the U.S., That is unrelinquished, While taking a temporary trip abroad, For a relatively short period of time 13 But what does that really mean, in terms of what you can and cannot DO?

14 Home is where the Heart is. 14 Domicile Is Unrelinquished Domicile is the place where you have your permanent principal home to which, whenever you are absent, you intend to return. Usually it means the country where your legal home is, and not a specific address. Domicile is not the ownership of a house or other living quarters. Legal possession of a residence is only one factor in determining domicile. A person may have only one domicile at a single point in time. In contrast, a person may have any number of residences at a given time. Domicile is (generally) not a fact. It is an amorphous belief in your heart. The only way to establish domicile is by producing documents, or pointing to actions, that lead logically to the conclusion that you will return to a certain place after any wanderings abroad. The law requires that LPRs have unrelinquished domicile in the U.S. You must show that have not abandoned or otherwise given up your right to live indefinitely in the U.S. You must be able to show that all of your circumstances, when considered together, support the assumption that you have a permanent domicile in the U.S. Your intentions, as inferred from your actions and any documents you can produce, must support a conclusion that you always held an intention to return to the U.S.

15 Answers Questions 15 There is no easy answer, or set of requirements, which if you implement them will guarantee that you have secured your LPR status during your departure. Every set of circumstances is unique. The events that are driving you to take a trip abroad, the events that lead up to the acquisition of permanent residence in the first place are unique to you, and both of those affect how the rest of your situation will be viewed. This presentation will ask the questions that you need to pose to yourself when preparing for your trip abroad. It will not necessarily give answers. 1. Is the visit abroad temporary? What marks the end of the visit? Is the end of a visit set by a date or an event? How well defined is the end of the visit? Is it a specific time, or a range of possible times, or subjectively determined? How much control do you have over when the visit ends? How frequent are your visits abroad? These tend to be actual FACTS they are what happened during your departure from the U.S. 2. What is your intention during your visit abroad? Will you reside permanently in the U.S. when the visit ends? What other connections are there between you and the U.S., or you and the foreign country? These tend to be inferred. Your intention is in your mind and heart. There is nothing that STATES your intention but what your intention can be deduced from the documents you have and actions you take.

16 16 1 Is the Visit Temporary

17 Is the Visit Abroad Temporary? 17 What marks the end of the visit? How well defined is the end of the visit? How objective is the end of the trip abroad? How much control do you have over the end of the visit? Explanation Better: A date or event marks the end of the visit abroad. Not Good: There is nothing set that marks the end of the visit abroad. Most precise: a specific date. Less precise: a range of dates (depending on how wide the range is). Fuzzy: an event depending on how objective or subjective the event is. Dates are objective. Events can be objective or subjective. In general, endings that are objective or quantifiable are preferred. Endings that are subjective are less desirable. If the end of the trip abroad depends on an event that is within your control, then this is more desirable. If the end of the visit depends on something outside of your control, this is less desirable. Comment No fixed ending to the trip abroad implies that there will be no end. The less precision there is in the scheduling of the end of the trip abroad, the more it looks like you anticipate postponing or avoiding the end of the trip. Examples: Birth of a Baby versus When your mother feels better. Examples: Packing your leftover possessions up and putting them in storage. Versus Persuading your father to move him to a nursing home and then moving him there.

18 Is the Visit Abroad Temporary? Date Specific Returning to home country for 3 months To defend thesis. Help your sister move. Sell your former residence Event-Specific Returning to home country for 1 years to Take an assignment at CERN. Care for your mother during her cancer treatment. No Fixed End Returning to home country While spouse takes stillmore degree programs at the local university. To try out a 3-year appointment teaching at the local university. Where does your proposed trip abroad fit, in this range of possibilities? 18

19 19 2 Your Intention

20 Actions versus Intentions 20 [w]hat is a temporary visit cannot be defined in terms of elapsed time alone,. The intention of the visitor, when it can be determined, will control. United States ex rel. Lesto v. Day, (C.C.A.) 21 F. (2d) 307, 309. Belief Intention Action Desire

21 Factors that will be considered 21 Residence Employment Allegiance Dependent Family Property Business Financial Filing Taxes as a Resident

22 Residence 22 Ownership Questions The law does not require you to continue to own or maintain a residence in the U.S. during your departure. At one point you held a residence in the U.S. What happened to it? Did you sell it? Lease or rent it? Or retain it for future use? If you retain ownership of your former residence, is it as an investment or to retain it for future use? How long did you reside in the U.S. before your departure? How much of that was as a permanent residence, as opposed to other statuses?

23 By a US Organization Employment Abroad Employment abroad for an American organization is a positive factor, not a negative one. This is considered a tie to the U.S., despite the fact that the geographic location of the work is abroad. 23 By a Non-US Organization Employment for a foreign employer, foreign government or international organization, on the other hand, is a problem. This is a significant connection to the foreign country. It appears that the applicant intended to work indefinitely [abroad], as long as the employment was available. While [the] employment [in Bahrain] might not have been "permanent," [it] was plainly indefinite and not fixed by any early event. Aleem v. Perryman, 114 F.3d 672 (7 th Cir. 1997)

24 Other Connections 24 Allegiance Dependent Family Property Business Financial Taking permanent residence or citizenship in a foreign country, Voting in foreign elections, or Running for public office in a foreign country. These are considered significant connections to the foreign country and might lead to a conclusion of abandonment on their own. If your dependent family remains in the U.S., they are a strong connection to the U.S. If they accompany you abroad, they can be a neutral element, or (depending on all the circumstances) they might be a further connection to that foreign country. The location of any significant property that you own (buildings, residences, cars and even your household furnishings) can give s a strong suggestion about your future plans. If you retain your household furnishings from your former residence, such as in storage, this implies you plan to return to the U.S. The location of any business interests can sometimes be significant. It is not uncommon for new LPRs to start their own businesses, with or without continuing their regular employment. Basing the business in a country other than the U.S. implies that you do not have a longlasting connection to the U.S. The presence (or absence) of checking or savings accounts, retirement accounts or other financial connections to the U.S. is considered indicative of your intentions. If you cash out or close these accounts when you temporarily depart, it is highly suggestive that you do not intend to return.

25 Filing Taxes During Visits Abroad LPRs must file US tax returns each year showing that they are resident for tax purposes. 25 If the applicant admits having claimed nonresident alien status for federal income tax purposes [the USCIS adjudicator will consider] the possibility that the [applicant] may have abandoned residence for immigration purposes. 1 Adjudicator's Field Manual--Redacted Public Version, 52.2(b)(4). In such situations, the USCIS will request additional documents from the applicant that would enable the USCIS to determine whether the tax election made by the applicant was indicative of an intention to abandon or relinquish permanent residence in the U.S. It is very difficult to overcome the assumption in this situation that permanent residence has been abandoned.

26 Children of LPRs 26 If you have children who are less than 16 years old, then their residence will be determined by your residence. If you are found to have abandoned Permanent Residence in the U.S., they lose their Permanent Residence too. An alien child under the age of 16 years is not considered to possess a will or intent separate from that of the parents 9 FAM N5

27 27 3 Tying it All Together

28 Tying it Together 28 Factors to be used to consider whether an absence is a temporary visit abroad include: Positive Considerations Family ties to the U.S. Property or investment holdings in the U.S. Employment or business ties to the U.S. Working abroad for a US employer Being an LPR residing in the U.S. for a long time, before going abroad. Filing US tax returns as a resident for tax purposes Negative Considerations Strong family ties to the foreign country Property or investment holdings in the foreign country Employment in the foreign country, or other business ties Working abroad for a foreign government or international organization No clear endpoint to the stay abroad Taking formal permanent residence or citizenship in the foreign country Residing in the U.S. as an LPR for only a short time before going abroad Filing US tax returns as a nonresident for tax purposes

29 The questions now are What is your real intention when you go abroad? Is the visit really going to be temporary? Are you maintaining a residence in the U.S.? 29 Planning a trip abroad poorly can potentially result in: Problems and delay during inspection, Lengthy legal problems, or The loss of your LPR status.

30 Plans versus Reality While the applicant s professed intent was to return to the United States, her actions have not supported that intent. A [mere] desire to retain her [LPR] status, without more, is not sufficient. Matter of Huang, 19 I&N Dec. 749 (BIA 1988) While the applicant's professed intent was to return to the United States, his actions have not conformed to that stated intent. Aleem v. Perryman, 114 F.3d 672 (7 th Cir. 1997) 30 The most carefully made plan is irrelevant if you do not stick to it. The key element of any plan to depart from the U.S. is to return to the U.S. This does not mean to temporarily visit the U.S. for one day every six months. It means to return and reside here. (Eventually.) Somewhere, there needs to be an indication that this return was in the plans too.

31 What Documentation Should Be Presented During Re-entry? 31

32 Returning Residents 32 SO you have carefully planned your visit abroad, and ensured that: It is temporary, and You are showing an intention to return to an unrelinquished U.S. domicile, Now you want to physically return to the U.S. What do you bring with you, to ensure that you can come home? the law states that...returning resident immigrants may be readmitted to the United States. 8 U.S.C. 1181(b) [INA 211(b)] When you return to the U.S, you are a Returning Resident.

33 Burden of Proof for Returning Residents 33 Assumption that residence is abandoned. Rebuttable Presumption that residence is abandoned. Assumption that Permanent Residence is not abandoned. 6 months 1 year More than 1 year Documentation about continuing residence in the U.S. is critical! Departure

34 LPRs and Admission 34 An absence of less than 180 days Strong connection to the U.S. Coming Home Any absence Appearance that you abandoned or relinquished residence in the U.S. Must document the right to return

35 Returning Residents 35 An absence of less than 180 days Strong connection to the U.S. Coming Home When coming home after an absence of less than 180 days, present either: A valid, unexpired Form I 551, Permanent Resident Card or A valid, unexpired Permit to Reenter the United States (discussed later!)

36 Permanent Residents Asking to Return 36 Any absence Appearance that you abandoned or relinquished residence in the U.S.* Must document the right to return An absence of any amount of time Any of: Frequent absences Lengthy Absences Few Connections to the U.S Strong Connections to the Foreign Country. You must be prepared to document that you have the right to return to the U.S. Example: You are employed by CERN, although still involved in the same experiment here in the U.S. You spend half your time at CERN, and the other half in the U.S. Where is your true home?

37 Permanent Residents Asking to Return Present either: 1. A valid, unexpired Permit to Reenter the United States, or 2. Both: A valid, unexpired Form I 551, Permanent Resident Card, AND Documentation that shows ties to the U.S. 37 or +

38 Re-Entry Permits 38

39 Re-Entry Permits A reentry permit allows a permanent resident to apply for admission to the United States upon return from abroad during the period of the permit s validity C.F.R (a) A Re-Entry Permit is a card that documents to the U.S. that you are leaving temporarily, but that you intend to return.

40 Eligibility to Request a Re-Entry Permit 40 Some individuals might not be eligible to file an application for a Re-Entry Permit: Where the applicant has been outside the United States for more than 1 year since his or her last departure. 8 C.F.R (b)(2)(ii)(D) Where the applicant has been physically present in the United States less than 2 months during a four-year period following admission for permanent residence and has never established, an actual residence in the U.S. Matter of Schonfeld, 10 I. & N. DEC. 669 (1964).

41 Re-Entry Permits 41 Re-Entry Permits are obtained by filing a Form I-131 Application for Travel Document with the U.S. Citizenship and Immigration Service. The Form I-131 is available online. Click on FORMS Scroll to the Form Number you want. Click on the Form, or on the Instructions. Some forms in multiple languages. All the Forms are listed in numeric order. Scroll down to the Form you want and then click on the blue hyperlink.

42 42 Each Form page has: A link to the Form A link to the Form Instructions. Basic information about the Form

43 Form I Form is used for multiple documents and filing situations. Once you complete the Form, it will still be blank in most areas. Filing Fee is (currently) $360. Check to see if this has changed before you file! You also must pay a Biometrics (Fingerprint) Fee of $85. Must be accompanied by photos of the applicant. If you are going abroad for Fermilab business, the Visa Office will prepare the Form I-131 Re-Entry Permit application for you.

44 Form I-131 The applicant for the Permit is you. 44 Complete all of Part 1. You are requesting a Re-Entry Permit. Leave the rest of Page 1 blank.

45 Form I-131 Date of Intended Departure: insert the date in dd/mm/yyyy format Expected Length: insert the relevant information in days, weeks or months. Attach a letter to explain the duration of the visit abroad. Indicate where you want the document sent. You must be physically IN the U.S. when you file the application with the USCIS, but (in theory) you need not be in the U.S. after that. Indicate where you want the notice of approval sent. The USCIS also will send all other communications about the application to this address, such as requests for more information. USCIS mail does not get forwarded so if you list an address and later place a mail forwarding request with the Post Office for that address, the USCIS correspondence will be returned to them as undeliverable. If you do not have a stable address, use the address of a friend or colleague. If your visa is sponsored by Fermilab AND you are going abroad for Fermilab, the Visa Office will list our address when we prepare this form for you. c/o Visa Office, Fermilab, Pine Street and Kirk Road, P.O. Box 500, MS 103 Batavia, IL 60510, USA /

46 Form I-131 Insert a summary of the intended travel, but also attach a letter that more fully explains the details of the letter. Use the letter to show how: The visit abroad is temporary, and Your intention is to return to an unrelinquished permanent residence in the United States. Indicate how much time you have spent outside the U.S. since becoming an LPR. The USCIS will have their own records of your entries and departures. If you indicate anything more than a few months absence from the U.S., it is prudent to document why the absences occurred such as if they were in support of U.S. employment. You might need to counter an appearance that you are not really residing in the U.S. Show either how the absences from the U.S. were related to U.S. interests (such as if they were required by your U.S. employer) or how they were made necessary by events outside your control that had pre-defined end dates (such as visits to ill family members or to finalize specific business transactions). 46

47 Form I-131 Indicate whether you have ever filed a tax return as a nonresident, after becoming a Lawful Permanent Resident. See Slide #23 discussing the tax consequences of abandoning LPR status. It is an extremely bad idea for an LPR to file a tax return as a nonresident!!! 47

48 Form I-131 Sign the form as indicated on Page 3. The rest of Page 3 is blank. 48

49 Filing the Form I-131 File the application with the Phoenix or Dallas lockbox for the USCIS. The address for mailing is listed on Page 7 of the Form I-131 Instructions. Use a traceable form of delivery, such as the U.S. Post Office s Express Mail or a private courier. 49 The application must be filed while the applicant is physically in the U.S. After the application is received by the USCIS, the applicant may, in theory, depart the U.S. an application may be approved if filed by a person who is in the United States at the time of application and is a lawful permanent resident or conditional Permanent resident. 8 C.F.R (b) Departure from the United States before a decision is made on an application for a reentry permit shall not affect the application. 8 C.F.R (d) However, the USCIS now requires applicants for Re-Entry Permits to provide fingerprints (biometrics). Fingerprints are collected only at USCIS facilities in the U.S. Biometrics appointments are usually 3 weeks after filing. The USCIS has suggested that applicants remain in the U.S. until the fingerprints have been taken. This sometimes is not possible.

50 Filing the Form I If you cannot remain in the U.S. for 3 weeks or until the fingerprints are taken, the other alternative is to depart the U.S. and then return in a few weeks for the fingerprints. If you return is around the same time as the biometrics appointment, then you can go for the scheduled biometrics appointment. If your return is after the biometrics appointment, then when the biometrics appointment is issued, you must respond by advising USCIS using the form provided to advise that you are unavailable on the scheduled date and request a new date. In most cases, once you have the biometrics appointment notice, you may simply show up unscheduled at a USCIS biometrics center and have your fingerprints taken. Sometimes, you will be asked by USCIS to provide a letter from Fermilab explaining the need to reschedule the biometrics appointment. The Visa Office can provide that.

51 USCIS Processing of Form I-131 Applications Once the Form I-131 is filed with the USCIS In 2 or 3 weeks you will receive a biometrics notice In roughly 3 months, in most cases, you will receive a decision. 51 In some cases, the USCIS might issue a Request for Further Evidence, if they have questions or concerns about the information you provided. The actual Re-Entry Permit will be mailed to the address listed in the Form I-131. When reviewing the Form I-131 Application, the USCIS must determine whether the applicant's absence from the U.S. is temporary. Adjudicator's Field Manual, Redacted Public Version, 52.2(b)(3). Re-Entry Permits will be issued only to those applicants whose visits abroad appear to be temporary, and where the applicants show an intention not to abandon or relinquish their permanent residence in the U.S. Attach to the Form I-131 Application, ANY documents that provide details about: Your connections to the U.S., so that the adjudicator can see that your intention is to retain domicile in the U.S. to return to the U.S. after the trip abroad ends, and The temporary nature of the trip abroad.

52 Validity Period of the Re-Entry Permit In most cases, the Re-Entry Permit will be valid for 2 years. 52 Re-Entry Permits will be issued in increments of only 1 year if you have been outside of the U.S. for more than 4 years (in the aggregate) since becoming a permanent resident, or during the last 5 years (whichever is less). 8 C.F.R (a) and (c)

53 What does a Re-Entry Permit Mean? An LPR holding an unexpired Re-Entry permit shall not be deemed to have abandoned resident status solely based on the duration of his absence(s). 8 CFR 223.3(d). The CBP may not inquire into whether the applicant s visit abroad was temporary or not, based solely on the duration of the absence from the U.S. Matter of V, 4 I.&A. Dec. 143 (1950). 53 However, the CBP may make reasonable inquiries about the applicant s activities abroad. 1 CBP Inspector s Field Manual, 13.1 Basically, this means the CBP can question anything other than the duration of the absence. If the answers cause the CBP to question aspects about the trip abroad other than the duration of the absence, the CBP is authorized to further explore those issues. For example, the CBP might question whether the applicant s intentions were to establish a permanent residence abroad, or abandon the permanent residence in the U.S.

54 Discussions with CBP During Re-Entry 54 CBP might ask about Employment abroad, Immediate family members who are not permanent residents, Arrival on a flight where most passengers are non-residents with return passage, Lack of a fixed address in the U.S., Frequent, prolonged absences from the United States Etc. In questionable cases, CBP officers will ask for documentation to substantiate continued U.S. residence, including but not limited to U.S. driver's licenses or employer identification cards (ID Badges).

55 Not a Guarantee of Problem-Free Re-Entry Thus, a Re-Entry Permit 55 is a valuable admission document for LPRs who are absent from the U.S. for extended periods of time. Is not a complete guarantee that there will be no problems but it is pretty close. If your intention to retain your permanent residence in the U.S. is not supported by your actions, then the Re-Entry Permit will not save you. There are cases where individuals were determined to have abandoned LPR status, even though they had Re-Entry Permits. Totality of the circumstances still rules! If you are absent from the U.S. for more than 1 year Have a Re-Entry Permit Have documentation of your connections to the U.S. Prepare explanations for any connections you might have to the foreign country. Be prepared for challenges to your claim that you retain an unrelinquished permanent residence in the U.S.

56 Getting More Re-Entry Permits 56 A Reentry Permit may not be renewed. INA 223(b)(3), 8 CFR 223.3(c). Applicants may file sequential applications for another re-entry permit. When you file an application for a new Re-Entry Permit, you must enclose the previous Re- Entry Permit with the application. If you do not, the USCIS will issue an RFE to obtain the prior Permit.

57 Inability to Obtain a Re-Entry Permit 57 In the absence of contrary evidence, the Department presumes that application for a reentry permit prior to departure is prima facie evidence of intent to retain LPR status. However, failure to obtain a reentry permit should not be viewed automatically as intent to abandon residence and LPR status. 9 FAM Note 2.2 (FAM is the Foreign Affairs Manual of the U.S. Department of State) An LPR who does not have a Reentry Permit may establish he is returning from a temporary visit abroad by other means. INA 223(e). In these cases, the LPR should carry documentation during re-entry: About ties to the U.S., which show that his/her intention was to retain a permanent residence in the U.S., and About the visit abroad, which shows that the visit was temporary.

58 Returning Resident Visas 58 The term special immigrant means an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad. 8 U.S.C. 1101(a)(27)(A); [INA 101(a)(27)(A)] 22 C.F.R (a)

59 What is a Returning Resident Visa? An LPR who already is abroad and lacks a Re-Entry Permit might want to apply at a U.S. Consulate for a Returning Resident Visa stamp. This also is called an DS-1 visa. 59 The process for submitting the application is similar to any other visa stamp application, but the focus of the questions will be very different. An LPR who has remained outside the United States for more than one year may be eligible for returning resident status if: 1. The applicant intended to return to an unrelinquished residence in the United States; and 2. The visit abroad was for reasons beyond the applicant s control and for which she or he was not responsible. 22 CFR 42.22; 9 FAM Note 1.1

60 Procedure 60 An applicant seeking a special immigrant Returning Resident (DS-1) visa must complete Form DS-117, Application to Determine Returning Resident Status. The applicant should file Form DS-117 and supporting documentation at the Consulate in the country or area of the country where he or she currently resides. The applicant must have an interview at the Consulate. The Consulate will, generally, apply the same rules as previously discussed relating to what constitutes An intention to reside permanently in the U.S., and A temporary visit

61 Required Evidence 61 The application for the returning resident visa must include documentation that the applicant: 1. Was a lawfully admitted permanent resident of the United States at the time of departure; Attach a copy of the greencard. 2. Had the intention of returning to the United States at the time of departure; 3. Did not abandon the intention to return to the United States while living abroad; and 4. Is returning from A temporary residence abroad; or If the stay was protracted, this was caused by reasons beyond the alien s control. 22 CFR FAM Note 1.2

62 Documentation Applications for Returning Resident Visas should include the following: A copy of your U.S. driver's license, issued within the past year and reflecting the same address as that recorded on the Form I-94, Arrival and Departure Record 2. The name and address of the U.S. employer (if any) 3. Evidence that a salary has been paid within recent time (such as a copy of paystubs, or a Form W-2 4. Evidence of children s enrollment in a U.S. school 5. Evidence that extended visit abroad was caused by unforeseen circumstances Include a letter that explains the circumstances Include other letters or documents are relevant, such as doctor s letters if the absence from the U.S. was caused by medical issues, etc. continued on next slide 9 FAM Note 1.3

63 Documentation Applications for Returning Resident Visas should include the following: 6. Evidence of a predetermined termination date to the visit abroad 63 Documentation about the upcoming graduation, employment contract expiration, etc.; 7. Evidence of having filed U.S. income tax return(s) for the past year(s) Include copies of U.S. tax returns filed during the trip abroad, preferably showing that you filed as a resident for tax purposes. 8. Evidence of property ownership, whether real or personal, in the United States. Copies of mortgages, property titles, apartment rentals, etc. Copies of titles to cars or other significant items owned that are located in the U.S. continued on next slide 9 FAM Note 1.3

64 Documentation The Consulate might also ask to see documentation or evidence that normally is required of first-time applicants for immigrant visas, such as police clearance certificates. 64 Applicants need present records and documents in support of an application for a Returning Resident Visa only for the period of time when they resided temporarily outside of the U.S. In general, police certificates or other documents should not be requested if the absence has been for less than six months. 22 CFR 42.22(b); 9 FAM N11

65 Interview and Conclusion Once the application is received, the Consulate will review the paperwork and then contact you for an interview. At the interview, the Consular officer will discuss generally the absence from the U.S., and any topic related to supporting or disproving Whether your intention was to retain permanent residence in the U.S., and Whether the visit was temporary. At the conclusion of the Interview, the Consular officer either will: 65 Advise that the Returning Residence visa will be issued and tell you when the visa will be inserted into your passport and the passport returned to you, or Advise that the application was being denied. This does not constitute a finding that you have abandoned LPR status. It ONLY is a finding that you are not eligible for the Returning Resident Visa. The Consulate cannot require you to give up your greencard. There is no appeal from a denial.

66 Specific Situations 66

67 LPR-Status Students Engaged in Studies Abroad 67 Students generally are not considered resident of the country where their school is. Their domicile is the country where their connections are. Even prolonged absences from the United States may be considered temporary if the LPR can present evidence of a receipt of a degree within a definitive time. Document a definitive graduation date. Consular officers should take into account whether students return to the United States at the end of each academic term, or whether they have family still living in the United States. Evidence of property ownership (if any), or a bank account in the United States, may indicate the student intends to return to the United States upon completion of studies. 9 FAM Note 1.10 However, significant ties to the country where the studies are being engaged, combined with a lack of ties to the U.S. and an indefinite graduation date, may result in a finding that LPR status has been abandoned. Matter of Huang, 335 F.3d 415 (5th Cir. 2003)

68 LPRs entering the U.S. as a B-1 or B-2 Visitor 68 Returning to the U.S. briefly as a nonimmigrant visitor (such as in B-1 or B- 2 status, or under the Visa Waiver Program) will not automatically result in a finding that LPR status has been lost. The individual would have to show that the need to enter the U.S. was immediate and unavoidable, and that delay could not be tolerated. The situation would have to be critical. Absent an emergency, this is a really bad idea. 9 FAM Note10

69 How is LPR Status Lost? 69 WHO DECIDES THIS? WHEN IS IT DETERMINED? HOW IS IT DETERMINED? WHAT CAN YOU DO?

70 When does LPR Status end? 70 LPR Status continues until it is determined to have ceased to exist. During proceedings before an Immigration Judge or federal judge Following a challenge by CBP during admission, or Upon referral to DHS by a Consulate By formal renunciation by completing Form I-407 By expiration of Conditional Resident Status without timely filing of an appropriate application (such as to remove conditions)

71 What Happens? The usual way that LPR status is challenged is: 71 While talking with a CBP officer in an airport, after getting off your plane and arriving in the U.S., the CBP officer asks questions relating to your activities abroad, your trip, and your intentions with respect to your residence in the U.S., and thereby questions whether you have abandoned LPR Status. You then could be Sent to Secondary Inspection. This is by far the most likely circumstance: This is the formal name of the actual CBP office within the airport. It is just a private place to talk with CBP, away from the lines of other air travelers going through customs. A CBP officer will talk with you about all the circumstances surrounding your absence from the U.S. or Ordered back to the contiguous country from which you came (but only if that was Canada or Mexico) or Sent to Detention (a really nasty form of prison but this is incredibly unlikely).

72 What Happens? If, at the end of the discussion, the CBP officer decides that you have abandoned LPR status: 72 The officer will take the greencard away from you. You will be paroled into the U.S. This means you will physically be allowed into the U.S., but that you have not been granted a specific immigration status. This is because they don t know, at this point, what you are immigrant or not. You will be given a Notice that tells you that you have been placed into proceedings (Court). If the local CBP office cannot issue Notices, then it will send you to another DHS office where a further discussion will be had to evaluate whether LPR status is abandoned. An attorney can represent you. A Court date will be set later, once a DHS attorney is assigned. You will receive notice of the Court Date in the mail.

73 Burden of Proof in Court 73 where an applicant for admission has a colorable claim to returning resident status, the burden is on the [Immigration] Service to show that the applicant should be deprived of his or her status as a lawful permanent resident. Matter of Salazar, 17 I&N Dec. 167 (BIA 1979) Presenting an unexpired greencard during admission means that you have a colorable claim to returning resident status. ( Colorable means that you have met a minimum threshold of believability.) the [Immigration] Service s burden is to show that the applicant s status has changed by clear, unequivocal and convincing evidence. Matter of Huang, 19 I&N Dec. 749 (BIA 1988) The DHS has to prove that it is more likely than not that you abandoned or relinquished your lawful permanent resident status. The Judge will make his or her decision after the DHS and you each present your arguments and documentation. It is a good idea to have an attorney during the Proceedings. You can appeal the decision if you think it was made in error.

74 Court versus CBP 74 In Proceedings in Court The Court focuses on evaluating whether you intended to reside permanently in the U.S. Was your permanent resident status unrelinquished or abandoned? What was your intention throughout your absence from the U.S.? AND Was your visit abroad temporary? In an Airport or at a Port-of- Entry, in front of the CBP The CBP focuses on challenging your right to return to the U.S. by questioning Your physical presence in the U.S, and Your connections to the U.S. You must be prepared with documents and information that answer those challenges. You (or your attorney) presents documents and information to answer each of these questions.

75 Immigration Consequences to Abandoning LPR Status 75

76 Abandoning LPR Status If you are determined to have abandoned LPR Status, then there are Immigration Consequences Tax Consequences 76 You might be subject to a tax penalty if you are determined to have abandoned LPR status for purposes of tax evasion. This is a legal determination and has nothing to do with intentions.

77 Nonimmigrant Status Nonimmigrant Visa Status 77 There is nothing in the law that prohibits a former LPR from applying for admission to the U.S. as a nonimmigrant B-1, F-1, H-1B, etc. But you must demonstrate convincingly that you intend to comply with the terms of the nonimmigrant status Leave the U.S. when the status expires Do not intent to immigrate, if the status is one that does not allow immigrant intent You might have a slightly harder time convincing the Consulate of this than a person who never had had a greencard. If you decide to pursue permanent residence again, then: You will need to demonstrate convincingly to the USCIS that you really do intend to reside indefinitely in the U.S. this time. You might have a slightly more difficult time to do this that a person who never had been a Lawful Permanent Resident.

78 Expatriation Tax Expatriation Tax 78 Applies to green-card holders who abandon U.S. permanent residence, if they have been resident for 8 of the last 15 years, regardless of whether the decision to abandon LPR status was to avoid tax. The HEART Act, passed on 17 June 2008, "covered expatriates are treated as if they had liquidated all of their assets on the date prior to their expatriation. Covered Expatriates are those where any one of the following statements apply: Your average annual net income tax for the 5 years ending before the date of expatriation or termination of residency is more than a specified amount that is adjusted for inflation ($145,000 for 2009 and 2010, $147,000 for 2011, and $151,000 for 2012). Your net worth is $2 million or more on the date of your expatriation or termination of residency. You fail to certify on Form 8854 that you have complied with all U.S. federal tax obligations for the 5 years preceding the date of your expatriation or termination of residency. The Heart Act pretends that you actually sold all your assets. Net gain is calculated, and any net gain greater than $600,000 will be taxed as income. The tax applies whether or not an actual sale is made by the taxpayer. The Heart Act also applies to deferred compensation (401(a) or 403(b) plans, pension plans, stock options, etc.).

79 Absences from the U.S. and Your Eligibility to Apply for U.S. Citizenship 79

80 Naturalization LPRs may apply for US citizenship (naturalize) only once they have Held Lawful Permanent Residence for a certain amount of time, and Been physically present in the U.S. for a certain amount of time (The amount of time depends on the way they qualified for permanent resident status). 80 The LPR s continuous absence from the United States does not interrupt the physical residence required for naturalization if the person is employed by an American Institution of Research recognized by the Secretary of Homeland Security. Fermilab is an American Institution of Research ( AIR ). Not all facilities are AIR. The facility must apply to the USCIS. Ask your facility to be sure. INA 316(b) and (c) ; INA CFR FAM N9

81 Naturalization The Application to Preserve Residence for Naturalization Purposes is a preconfirmation by the USCIS that your absence from the U.S. will not interrupt your physical presence for naturalization purposes. Essential if you are not employed by an American Institution of Research A good idea even if employed by an American Institution of Research. 81 This is done on USCIS Form N-470. The filing fee is $330. Must be filed before you have been absent for one year, and filed while you are physically IN the U.S. In most cases, you cannot have had any absences from the U.S. during your first year as a lawful Permanent Resident. (Exceptions are for religious workers.) Regardless of whether you file Form N-470, you still must apply for reentry permits. If assigned abroad by Fermilab, the Visa Office can assist with this filing.

82 82 Questions?