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Worried! Regarding staying oversea over 1 years before applying I-751.

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I'm a conditional PR with a valid green card and reentry permit. Both of them will expire Jan 25th 2013. With my spouse, I've been oversea for 13 months. I'm planning to remove the conditional status oversea at the end of Oct 2012. Then fly to the US for the biometric.

Questions are:

1. After the I-751 biometric, if I need to come back oversea (for family reasons) for about 11 months (less than one year), do I still need a travel document in order to be able to re-enter to the states? What if only staying oversea for less than 6 months, does it make a difference?

2. If above is possible and I do it that way, does it have any negative implication on my record when I re-enter the country (considering I've been oversea for 13+2 months and then come back and then be oversea again?)

Thanks a bunch.

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Filed: K-1 Visa Country: Ukraine

Losing Permanent Residence Because of Travel

There are many myths about how long a permanent resident (green card holder) may remain outside of the United States before losing his or her green card status. This article will address some of those myths and provide the information necessary to try and avoid getting into trouble due to staying outside of the U.S. longer than the immigration law permits.

Myth 1 - Now that I have my green card I can move back to my country.

If you remain outside of the U.S. for more than one year continuously, you may lose your green card automatically. The Immigration Service takes the position that if you stay out this long, you have abandoned your green card status.

Myth 2 - If I visit the U.S. once a year I’ll be okay.

This is wrong. The law and the Immigration Service look to your intent or the purpose of your travel, not just whether you have returned to the U.S. once in a while. In fact, even if you travel to the U.S. frequently but you are living abroad, the Immigration Service may find that you have abandoned your residence and revoke your green card. The test is whether you intended to be abroad temporarily or whether you plan to live abroad permanently, not simply the time you spend outside of the U.S.

For example, if a person stays outside of the U.S. continuously and returns every few months but has no roots in the U.S., such as a job, bank accounts, a home, yearly tax returns, etc., the Immigration Service may find abandonment. On the other hand, if a person has strong ties to the U.S. but only returns once a year because he or she is abroad taking care of an ill or elderly family member, a finding of abandonment would not be appropriate if all other aspects of the person’s life establish that he or she has no intent of abandoning his or her residence (e.g., maintains a home, pays taxes, owns a business, etc.).

In determining whether a person has abandoned his residence, the courts have generally looked at the following factors: a. Purpose of departure; b. Existence of fixed termination date for visit abroad; and c. Objective intention to return to U.S. as place of permanent employment or actual home.

How will the Immigration Service know how long I’ve been gone?

This typically occurs either at the time you return to the U.S. and come through customs or when you apply for citizenship and the Immigration Service inquires about your travels.

It is important to note that you have the right to contest the Immigration Service's allegation that you have abandoned your residence.

In order to prevail on a finding that someone has abandoned her green card status, the Immigration Service must prove by clear, unequivocal and convincing evidence that residence has been abandoned.

If it was not your intent to abandon your residence and you maintained strong ties to the U.S., do not be intimidated by the Immigration Service merely because an immigration officer makes allegations of abandonment – make them prove it!

Myth 3 - I am automatically eligible for citizenship after five years.

One last point about traveling abroad is that it may effect your eligibility for U.S. citizenship. In addition to maintaining your ties to the U.S., you must also be physically present in the U.S. for certain periods of time in order to be eligible for citizenship. Generally, you must be physically present in the U.S. for at least half of the previous five years.

For most travelers, abandonment of residence will not be an issue, but for those who stay outside the U.S. for extended periods of time, the above tips should be kept in mind.

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Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

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