Working in Japan for 15 months. Stopped by immigration after 6 months outside US.

[ambig88 0]

Hey, so I, a US citizen, am working in Japan on a 15 month contract with my company, after which I will return to the US. My wife who left in December 2017 has been with me since. She has had her green card for 2.5 years and we're currently going through the ROC process. 

 

Anyways, we just got back to the US for a week trip and we're planning to come back for 2 weeks in September. From what I understood before leaving was that we needed to maintain ties to the US, visit occasionally (green card only allows her to be outside the US for less than a year without a re-entry permit). We own a house, pay utilities, taxes, receive pay, own other property in the US. After the 15 month stint, our time in Japan will come to an end. 

 

Is there anything I'm missing to ensure she doesn't have a problem? Have I misunderstood what it means to maintain ties to the US? Have I misunderstood whether she should have gotten a re-entry permit? Should we consider adjusting her stay in Japan to keep from running afoul with immigration.

 

Is there really an expectation that she can't be outside the US for 5 months or more without having her green card surrendered?

 

The officer unfortunately had gotten the issue date mixed up with the expiration date (she thought it was issued in Sept. 2017, but it was issued in 2015 and lived in the US up through December 2017). I pointed it out and she backed off a little bit and let us go but cautioned us that if she returns in Feb. 2019, she will probably lose her green card because she didn't reside in the US, despite not being outside the US continuously for more than a year.

 

Any help would be appreciated. Thank you!

[geowrian 22,337]

There is not a fixed time that an LPR can be abroad, but there is a presumption of abandoning residence if you are abroad for a year or longer. Just "touching down" in the US doesn't avoid having abandoned permanent residence either. It only avoids the mandatory presumption of abandoning permanent residence, not a determination of having done so.

 

The CBP officer will make a determination based on all of the facts available to them. From that, they can either admit as-is, or parole you (either directly or with detainment) and refer the case to an immigration judge.

Normally, if it's your first time, they will just give you a verbal warning. You have basically been given the verbal warning already.

 

A re-entry permit should have been obtained for such a long period outside of the US in aggregate, IMO. While having maintaining ties is important, a green card is for living within the US as your permanent residence, and if it appears that you are not doing so, then they can refer the case to an IJ to revoke it.

 

Did she claim any sort of residence (or benefits that require residence) while abroad? Was she working? These are things that could lead an officer or IJ to believe residence was being abandoned.

 

tldr; You would probably be okay in the end, but are pushing it since you have already been warned.

[Jojo92122 1,924]

15 months living outside the US with a green card. . . your wife should have gotten a Re-Entry Permit.

 

What do you mean by adjusting your wife's stay in Japan to keep from running afoul of immigration?  Adjust status to what in Japan?  Not run afoul of Japanese immigration or US immigration?

 

The exception to the presumption of abandonment after being outside the US for more than 1 year is the Re-Entry Permit.  The Re-Entry Permit allows a person to maintain LPR status with the exception that time outside the US is not counted as an abandonment of LPR status.

 

You've been warned, so take this caution seriously.  Google "maintaining LPR status."  Being outside the US for less than 6 months can be deemed an abandonment based on the totality of circumstances.  

Edited June 23, 2018 by Jojo92122

[ambig88 0]

Hey guys, thanks for the answers so far. To answer some questions:

 

"Did she claim any sort of residence (or benefits that require residence) while abroad?"

 

she doesn't and legally can't work in Japan full time (max is 24 hours per week). We are given a residence card, though it's given to anyone who is planning to work in Japan or anyone who is staying with someone working in Japan as a 'dependent' residence card. Hers is specifically a dependent status and would be required if she were to stay for more than 2 weeks as a Chinese citizen.

 

We live in a company paid apartment with the lease held and paid for by the company.

 

"safe way is for her to apply for a reentry permit now before she leaves."

 

Unfortunately it's not feasible for her to stay  2+ months to wait for a re-entry permit.

 

"15 months living outside the US with a green card. . . your wife should have gotten a Re-Entry Permit."

 

this is where I'm a bit confused. I'm in the US now with her. We're planning to return for 2 weeks in September. At no point is she physically outside the US for more than a year. So that's why I'm a little confused in how immigration officers can threaten to take green cards after just 6 months outside the US when a re-entry permit isn't needed unless you can't return to the US within a year. It doesn't make much sense to us in that regard. 

 

"What do you mean by adjusting your wife's stay in Japan to keep from running afoul of immigration?  Adjust status to what in Japan?  Not run afoul of Japanese immigration or US immigration?"

 

Since I'm the only one who is able to legally work in Japan and who has a contract, she is free to return at an earlier date. We had planned to return together in Feb. 2019. That would put her at 14 months outside the US. If waiting for a re-entry permit will take at least 2 months, she might just return permanently in November or early December to stay within the 1 year. This is specifically what the immigration officer had mentioned. If she stays past December (12 months), then she's at risk of having her green card revoked.

 

Japanese immigration would also be a problem if she doesn't return next week, making a re-entry permit not feasible too. Reducing her stay in Japan would be more feasible (and allow her to start looking for employment in the US again).

 

Would that be much of a problem if we just cut her trip shorter in Japan? It seems I'm confused on how the US government sees 'staying outside the US' for 12 months or more. Do trips back not count for anything? What about immigration revoking green cards when outside the US for 6-9 months?

 

 

Edited June 24, 2018 by ambig88

[Jojo92122 1,924]

9 minutes ago, ambig88 said:

Hey guys, thanks for the answers so far. To answer some questions:

 

"Did she claim any sort of residence (or benefits that require residence) while abroad?"

 

she doesn't and legally can't work in Japan full time (max is 24 hours per week). We are given a residence card, though it's given to anyone who is planning to work in Japan or anyone who is staying with someone working in Japan as a 'dependent' residence card. Hers is specifically a dependent status and would be required if she were to stay for more than 2 weeks as a Chinese citizen.  Claiming foreign residency would be deemed an abandonment of her US LPR status.  You will have to make the choice between her US LPR status or claiming residency in Japan unless you can find a non-resident visa for her to be in Japan more than 2 weeks at a time.

 

We live in a company paid apartment with the lease held and paid for by the company.

 

"safe way is for her to apply for a reentry permit now before she leaves."

 

Unfortunately it's not feasible for her to stay  2+ months to wait for a re-entry permit.

 

"15 months living outside the US with a green card. . . your wife should have gotten a Re-Entry Permit."

 

this is where I'm a bit confused. I'm in the US now with her. We're planning to return for 2 weeks in September. At no point is she physically outside the US for more than a year. So that's why I'm a little confused in how immigration officers can threaten to take green cards after just 6 months outside the US when a re-entry permit isn't needed unless you can't return to the US within a year. It doesn't make much sense to us in that regard.   Depending on the totality of circumstances, an LPR can be deemed to have abandoned status even if outside the US for less than 6 months.

 

"What do you mean by adjusting your wife's stay in Japan to keep from running afoul of immigration?  Adjust status to what in Japan?  Not run afoul of Japanese immigration or US immigration?"

 

Since I'm the only one who is able to legally work in Japan and who has a contract, she is free to return at an earlier date. We had planned to return together in Feb. 2019. That would put her at 14 months outside the US. If waiting for a re-entry permit will take at least 2 months, she might just return permanently in November or early December to stay within the 1 year. This is specifically what the immigration officer had mentioned. If she stays past December (12 months), then she's at risk of having her green card revoked.

 

Japanese immigration would also be a problem if she doesn't return next week, making a re-entry permit not feasible too. Reducing her stay in Japan would be more feasible (and allow her to start looking for employment in the US again).

 

Would that be much of a problem if we just cut her trip shorter in Japan? It seems I'm confused on how the US government sees 'staying outside the US' for 12 months or more. Do trips back not count for anything? What about immigration revoking green cards when outside the US for 6-9 months?

 

 

You really got to Google "maintaining legal permanent residency."  You have a good grasp of the rules, but you don't have them all down.

 

Less than 12 months out of the US is not an absolute safe zone for your wife.  There are other rules.

[ambig88 0]

15 minutes ago, Jojo92122 said:

You really got to Google "maintaining legal permanent residency."  You have a good grasp of the rules, but you don't have them all down.

 

Less than 12 months out of the US is not an absolute safe zone for your wife.  There are other rules.

 

I understand there are other rules. The Card we're given is not a permanent residence card. The card is very much conditional. Permanent residence takes much longer to get in Japan. There is no other option for her to stay longer. It basically replaces the complicated Visa system we have in the US with a card that requires you to meet conditions (such as employment conditions as in my case). In her case, it imposes heavy restrictions on employment, making it impossible for her to have a career in Japan.

[Jojo92122 1,924]

2 minutes ago, ambig88 said:

 

I understand there are other rules. The Card we're given is not a permanent residence card. The card is very much conditional. Permanent residence takes much longer to get in Japan. There is no other option for her to stay longer. It basically replaces the complicated Visa system we have in the US with a card that requires you to meet conditions (such as employment conditions as in my case). In her case, it imposes heavy restrictions on employment, making it impossible for her to have a career in Japan.

Then you understand the risks.  Claiming a foreign resident puts her LPR status at risk.

 

Best of luck.

[ambig88 0]

2 hours ago, Jojo92122 said:

Then you understand the risks.  Claiming a foreign resident puts her LPR status at risk.

 

Best of luck.

Yeah. Thanks very much. A big part of today is we honestly just didn't come prepared with documentation to prove we're maintaining ties (like pay stubs, copy of our deed, copies of US bank accounts, ongoing utility bill payments, ect, copy of my employment contract specifying that we're to be in Japan for a fixed duration).

 

We're discussing keeping her total trip time to less than a year or some combination of her staying a few months in the US and wait for a re-entry permit. 

 

When we come back in September we'll be much better prepared and hopefully the immigration officer doesn't get the expiration and issued dates mixed up. As I said, she's saying the same thing you guys are saying. More than a year a reentry permit is a must and that we should really reconsider the duration of her stay.

[milimelo 4,500]

Since you have a house in the US is there any reason why your wife can’t remain in the US when you come in September and get a job or start school? You can finish up your contract on your own. 

[ambig88 0]

39 minutes ago, milimelo said:

Since you have a house in the US is there any reason why your wife can’t remain in the US when you come in September and get a job or start school? You can finish up your contract on your own. 

Obviously we don't wish to be a part. Also, she's applying for ROC, and I would think spouses who live a part don't reflect positively in that application. But its something we will consider too, as legally she has no tie to Japan outside of me being there. My contract doesn't necessarily need her, but from what I understand it does support the fact that we do intend to return since there is an established termination period. I am an intracompany transfer, and am receiving split pay in Japan and the USA.

[geowrian 22,337]

Just so long as you know the risk and it has been explained.

The CBP officer stated his opinion on what would  happen. I would tend to take that into consideration as somebody in his same line of work does get to make the call to refer the case to an immigration judge or not.

[ambig88 0]

4 minutes ago, geowrian said:

Just so long as you know the risk and it has been explained.

The CBP officer stated his opinion on what would  happen. I would tend to take that into consideration as somebody in his same line of work does get to make the call to refer the case to an immigration judge or not.

You're absolutely right. The officer obviously couldn't say anything definite, since it's case by case and we also showed up without evidence, I can understand where she came from too and where the warning came from.

 

We're debating on whether she should apply for a re-entry permit in September and just stay until it's approved before rejoining me. Or if she should just cut the stay shorter and return earlier. I'm not sure which is the safest since the whole thing is one big damned gray area. I obviously would like to avoid court and having to retain a lawyer if at all possible, as a revelation of her green card would delay her return to the US to say the least.

[Going through 5,671]

6 hours ago, ambig88 said:

We're debating on whether she should apply for a re-entry permit in September and just stay until it's approved before rejoining me. Or if she should just cut the stay shorter and return earlier. I'm not sure which is the safest since the whole thing is one big damned gray area.

Safest is to apply for the reentry permit now (instead of September) and she doesn't leave the US until it's approved.

 

Right now you're playing with fire, especially after receiving a verbal warning.  The next POE officer looking up her records on the computer may very well presume she's using her GC as a glorified tourist visa (instead of maintaining residency) with "touchdown visits" to the US since she left in December, came back in June for only 1 week, leaves again, and then comes back in September for only 2 weeks before leaving again....and keeps doing short "visits" to the US until your contract is up.

 

6 hours ago, ambig88 said:

Also, she's applying for ROC, and I would think spouses who live a part don't reflect positively in that application.

Many bonafide couples live apart due to work/financial reasons.  As long as they can prove (through bank accounts, shared bills, tax filing, etc.) that they are still "living in marital union" during a temporary physical separation, it's common for ROC to be approved in those cases.

[CEE53147 559]

Sine you are intra-company assignment, your employer's US and Japanese attorneys should be assisting you.

[Barry Krebs 13]

If you and your wife are out for more a long period of time (over six months but definitely over a year), you have three options:  

 

• Formally abandon her green card at a US Consulate by filing USCIS form I-407, and starting the process again.  If you have been married over two years with her, she would likely get a permanent card, not a conditional one.  I caution on you on this option because you are married to her, she will revert back to non-immigrant.  Since she lived in the US, the DHS does not have to let her back in, and they don't need a reason.  The other problem you'll face is that getting another card for her is virtually impossible now.  And the costs are extremely expensive.  Not only that, but you'll have to have a job and a domicile in the US.  The Trump administration is encouraging enforcement, not for people to move to the US.  ICE's presence is certainly well known now.
• Have her get a returning resident permit-though this has to be done before you depart the US.
• Have her apply for a Returning Resident Visa (SB-1) at a US consulate.  You'll need lots of documentation to show reasons why she was out so long and that she and you have demonstrated ties to the US (ie home, a job to, US tax returns, etc).  The advantage here is that if she qualifies, she only has to go through the actual process without you formally petitioning for her again.  But it will still be up to DHS to let her back into the US and that she will formally have to update her card.  But since her card is conditional, get legal advise on how to formally proceed with either this or any of the above that I just suggested to you.  Good luck.

Edited June 24, 2018 by Barry Krebs