Question:
I have a friend. Australian. She's been married to a US citizen for 20 years,
had a green card for 20 years, only occasionally gone back to Australia
for vacation. Marriage is ending. She wants to go back to Australia and
spend a few years there. She claims to have an indefinite Green Card
because she has a US spouse. I thought all Green Cards only had 10 year
spans now. Are the older ones still un-ending? Is there something she
should do to check on her Green Card status?
And if she leaves for a few years, that's bad, right? You're supposed to
maintain a US residence, stay in the US 6 months out of 12, and 30 out
of 60 months. Are they the right numbers? Are long term spouse based
Green Cards exempt from these rules?
Answer:
All GCs issued from 1989 on.
She has to reside in the US. And stay abroad has to be temporary in nature.
See, e.g., http://www.visalaw.com/01jan4/12jan401.html
http://www.americanlaw.com/maintlpr.html
http://www.usvisanews.com/questions/wedquest090600.shtml (#4)
with a reentry permit she can be absent from the U.S. for upto 2 years.
The reason for her temporary absense has to be important. She cannot
leave the U.S. without a reentry permit (form 131 needs to be filed) if
she is going to be outside the country for more than a year. She is
then considered to have abandoned her residency in the U.S.
Several
years out of the U.S. is a no-no, resulting in a loss of permanent
resident status.
If she wants to go back to Australia for several years and then return
to the US (without needing to go through the immigration process again)
she needs to become a naturalised US citizen before she leaves.
There
ars tax obligations she would need to be aware of in doing this.
Prior
to 4th April 2002, she would have lost her Australian citizenship by
becoming a US citizen. Australia has now changed its law, so she can
have dual citizenship if she wishes.
Actually, the tax obligations exist for PRs as well. PRs have to file
US resident tax returns and have to declare their worldwide income,
just like US citizens.
True. If she were to somehow maintain her PR status then, yes,
she would be subject to US taxation even while out of the US.
But, wouldn't it be difficult for her to return to Australia for several
years and still maintain her PR status in the United States? I believe
that's why JAJ was emphasizing that she would have to obtain
US citizenship. It would secure her right to return to the US.
You need to differentiate between the expiration of a green card,
and the expiration of permanent resident status.
In the past, Green Cards (the physical cards themselves) did not
have any type of expiration date. Now they do. The cards expire
every ten years, generally. But that expiration doesn't mean that the
holder loses his permanent residency. It just means that the card must
be physically replaced at least once every ten years. As long as the
person has maintained his permanent resident status by living in the
US, then renewing green card is akin to renewing a passport or
driver's license. The expiration date allows for the card's photograph
to be updated and for new security features to be added to the card.
Some people do have "conditional" permanent resident status. These
are people who immigrated to the US on the basis of marriage, where the
marriage was less than two years old, or who came an as an employment
creation immigrant. The permanent residency of these immigrants
will expire after two years, unless they apply to have the conditional
status removed.
There might be some people out there with the older style cards
(which do not have an expiration date), but the holder should
replace it. Note that even if the card does not have an
expiration date, it doesn't mean that the person can live outside
the US indefinitely and then return.
She does have to maintain your resident status. There are ways to do this for a
period of time, but not indefinitely.
Okay, let me see if I understand this.
Non-US-citzens can obtain Permanent Resident status through a number of
means (marriage, employment, Diversity Lottery, and others). When they
get Permanent Residence status, they get a card that demonstrates their
valid status, and this is commonly called the Green Card (presumably
based on the actual colour of the card).
When you get Permanent Resident status you get it for life, as long as
you obey the rules. The Green card itself used to be a lifetime card,
but since 1989 the cards have a lifetime of 10 years and need to be
replaced each 10 years.
You can lose your Permanent Resident status by breaking the rules. The
two most important rules are - don't commit crimes, don't stop being a
permanent resident.
You can stop being a Permanent Resident by not maintaining a residence
in the USA (a house, an apartment, whatever) and by leaving the USA for
too long. If you leave the USA and then re-enter, the Immigration
officials make decisions about your status based on what they know, and
they may query you about your absence and whether you have abandoned
your Permanent Resident status. Since the start of 2004, they register
all departures, so they most probably know how long you've been out of
the USA.
If you've been away for less than six months, the burden of proof is on
them. If they can prove that you haven't been a Permanent Resident
(using information from informers, or you being very stupid or blatant
in what you say to them), they might decide that they have enough
evidence and refuse to let you in the country, deeming that you have
abandoned your Permanent Resident status. You need a lawyer, or you'll
be on a plane out of there pretty quickly. But normally, if you return
within six months, then there isn't much notice taken and you get to
return and take up life again. Sometimes vacations can be long
vacations, or you need to go back and tend to dying relatives.
But after six months, the burden of proof shifts to you, to prove that
you haven't abandoned your Permanent Resident status. You would probably
need to show documentation that you did maintain a residence (mortgage,
rental agreements, etc) and that your absence from the USA was temporary
in nature. How you would do that, I don't know, especially if you didn't
maintain a residence. A lawyer would be helpful. Otherwise you could be
on a plane again.
If you did want to leave, and be safe about it, you can apply for a
re-entry permit. If you have a good valid reason (and I was told it
better be a very good reason) for being out of the USA then you might
get a re-entry permit that you would let you stay away for two years
(first time) or one year (subsequent times). Then you have to be back
before the expiry date of those re-entry permits, or your Permanent
Resident Status is deemed to be abandoned and you lose your Permanent
Resident status. And your Green Card is cancelled, presumably.
This applies to all Permanent Residents, whether the PR status was
granted for marriage, employment or Diversity Lottery or whatever.
Is that right so far?
Now if my friend were to disregard my warnings, and sell the house,
leave the husband, take the kids and go to Australia for a few years,
without getting a re-entry permit, and then she decided to come back to
the USA, then there is a pretty good chance she would be stopped and
questioned and then not allowed back in. The kids, being US citizens
with their own passports, would have no problems, but she would have
problems. A lawyer would be needed, but would probably be ineffectual in
this case.
Is that a reasonable assessment?
Your assessment was reasonable up till the point where you say that she
needs to keep the house (appartment) to keep her Green Card.
As it was
stated before, if she has a good reason to leave a country for more than
6 months, she can obtain necessary reentry documentation.
Even if she
keeps the house in the US and leaves, she will still need to do the same
-- get reentry permit before she leaves.
Hence, having a house has
nothing to do with her Green Card but you are right on everything
else... I think....
Also, if her kids are US citizens, even if she
abandons her GC now, I think her kids will be able to sponsor her new
GC (when they become 18 years old (or 21?)
