GREEN CARDS
A ‘Green Card ‘ holder is an alien
who has obtained legal permanent resident status in the United States. There
are four main ways to arrive at this status.
2) Employment
Based Immigration
Persons who have gone through so
much effort in terms of money, time and other hardships to gain permanent
residence status (i.e., a green card), sometimes forget that there are certain
strict rules to be followed in order to maintain this status. One of the most
common mistakes made is that of staying away from the United States for long
periods of time. These prolonged absences can seriously affect their permanent
residence status and ability to qualify for American citizenship.
A green card holder must return to
the United States within one year of leaving the country if he/she wants to
maintain its status. If a person is required to remain away from the U.S. for
over a year, he/she should apply for a Re-entry Permit before he/she leaves the
country. This permit has a validity of two years and allows the holder to
return to the U.S. within this time without a new visa. This also proves, as
far as the INS is concerned, that the person had genuine intent to return to
the U.S.
It is advisable to apply for a
Re-entry Permit if the person is going to be away for six months or longer.
An absence of over six months but less
than a year sometimes raises the question of a break in continuous residence
for the purpose of naturalization. This may be overcome by showing the
maintaining of an apartment, family remaining in the U.S. and continuation of a
job or business, thereby proving there was no intent to abandon permanent
residence in the U.S.
If a person has been away from the
U.S. for an extended period of time and does not possess a Re-entry Permit, or
has a Re-entry Permit, which has expired, he/she can apply to the nearest
American Consulate for a special immigrant visa known as the Returning Resident
Visa.
However, this visa is not given
automatically, and it is up to the applicant to convince the Visa Officer that
the reason he/she has been away from the U.S. for so long, was due to
circumstances beyond his/her control, e.g., an accident or illness, death in
the family, etc. Documentary evidence may be required to prove that the
applicant’s claims are genuine. The Visa Officer has the discretion to approve
or deny the request and the decision is final.
If the request for the visa is
granted, the applicant will have to re-submit all the documents that he/she had
submitted at the time of applying for the original immigrant visa. The
applicant will have to undergo a fresh medical examination. However, there is
no need to file a new petition. On entering the U.S. on the Returning Residents
Visa, the old green card is automatically re-validated. It must be noted,
however, that this request is very rarely granted and is not a recommended way
to maintain a green card.
If the request is not granted, and
the green card is taken away, it does not mean that the person can never get
another visa to enter the United States. A nonimmigrant visitor visa may be issued,
but the person would have to convince the Visa Officer that he/she will
definitely be returning to his/her own country. If this is also refused, then
the only way to return to the U.S. would be to apply again for a new immigrant
visa in the family or employment based visa categories.
v State Department’s Leaflet on Returning Residents
A green card holder is qualified
to apply for citizenship after he/she has held
permanent resident status for five continuous years, half of which should have
been physically spent in the United States. Those persons, who have obtained their
green card by virtue of being the spouse of a U.S. citizen, have this period
reduced to three years.
An absence of more than one
continuous year, however, wipes out the previous years of qualifying residence.
He/she would now have to wait 4 years and 1 day after his/her return to the
U.S. before qualifying for citizenship.
Although, the INS very strictly
adheres to these rules, they do make certain exceptions for certain categories.
The official term for this is ‘preserving residence for naturalization
purposes’.
Preserving Residence
for Naturalization Purposes
Certain categories of permanent
residents are allowed to obtain prior permission from the INS to consider the
period of their absence from the United States, as continuous residence in the
U.S. for the purposes of their naturalization.
These categories include permanent
residents who have been posted abroad by their employers, such as the U.S.
government, U.S. firms with international operations, international
organizations of which the U.S. is a member by treaty or statute; religious
workers like missionaries, clergymen etc. He/she must have been physically
present in the U.S. for at least one continuous year after obtaining permanent
resident status.
If the person belongs to any of
the above categories, he/she should submit an ‘Application to Preserve
Residence for Naturalization Purposes”, i.e. Form N-470.
The application must be supported
by a sworn affidavit by an official of the organization, giving details such as
the nature of the business, the nature of the relationship between the U.S.
company and its entity abroad, the duties of the employee and the period for
which he/she will be posted abroad.
A Re-entry Permit must not be
confused with an application to Preserve Residence for Naturalization Purposes.
The former only allows the green card holder to re-enter the United States
after a prolonged absence of between one to two years, without losing his/her
permanent residence status; whereas the latter allows you to count the period
you are absent from the United States towards the 5 or 3 year qualifying period
for purposes of naturalization.
It is important to remember that
the term ‘continuous residence in the U.S.’ the period for which the person has
been a green card holder; while the term ‘physical presence in the U.S.’ means
the period during which the person has actually physically been present in the
U.S.
Since the fall of 1989, the INS has
issued Green Cards, which need to be revalidated after ten years. The date of
expiry of the card is indicated on the front of the card. This was done in
order to update photo identification and implement new card technologies, which
will help in decreasing the counterfeiting and tampering of the card.
The Green Card holder may send in
the application (Form I-90, ‘Application to Replace a Permanent Resident Card’)
for a new card up to six months prior to the date of expiry. This may do by
mail or in person. Presently, it takes about 10 to 12 months for the new card
to be issued. However, the local INS office will issue immediate temporary
proof of your permanent residence status, either by stamping your passport or
issuing you a temporary document (Form I-94) with your photograph. This may be
done over the counter if you take your application, along with your passport or
an extra photograph, in person. The filing fee for renewing the Green Card is
$110/-. During this time, there is no change in your status as a lawful
permanent resident.
If the Green Card has already
expired, a new one should be applied for immediately. There is no penalty for
renewing an expired Green Card.
A temporary proof of permanent
residence status is necessary if you are traveling abroad, applying for a job
or benefits.
On March 17, 1998, The INS
published an interim rule that required all persons applying for the
replacement of their Green Card, to be fingerprinted. However, on 26 September
2000, the INS issued an amendment to this rule to say that only a person who is
applying for renewal because he/she has reached the age of 14 years must be
fingerprinted.
INS InfoLinks on Green
Cards:
v
How to Renew Your Green Card
v
How to Replace Your Green Card
v
How to Become an LPR while in the U.S.
v
Frequently Asked Questions (FAQs)
The information in this article is of a general nature
and may not apply to any specific or particular circumstance. It is not to be
construed as legal advice and does not establish an attorney-client
relationship between The Law Offices of Cyrus S Nallaseth and the viewer.