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.
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 remain out of the U.S. for this period. This also proves, as far as the USCIS 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 an intent to permanently reside in the US, such as, by maintaining of an apartment, ownership of assets, family in the U.S., continuation of a job or business, paying of taxes as a resident, etc thereby proving there was no intent to abandon permanent residence in the U.S.
Returning Resident Visa
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 which prevented him/ her from travelling into the US. 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 and obtain fresh police clearance. 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.
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 USCIS 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 USCIS 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.
RENEWAL OF GREEN CARDS
Since the fall of 1989, the USCIS 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. 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.
Surrendering Your Green Card
There is also a provision for surrendering a green card. If you wish to abandon status as a Legal Permanent Resident, you may execute a Form I-407 before a consular officer for no charge and surrender your Green Card. The appropriate documentation stamps will be placed on the form along with the officer’s signature. Once you have surrendered your green card you may apply for a B-1/B-2 (Business/ Tourist) visa, which will allow you to enter the US for short durations as a non-immigrant.
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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 Jethmalani & Nallaseth and the viewer.