The last few weeks this same issue has come up with such frequency we thought it appropriate to share some insight on it.
You’re a US citizen. Your aging parents are back home in, say, India. You know a lot of people in your circle of family and friends who sponsored their parents for a green card, and their parents come visit every year to “keep it.” Others actually do immigrate here. But, common wisdom goes, at least they don’t have to deal with applying for a visitor visa. After all, these parents have children over 21 who are US citizens. Why shouldn’t they get the benefit of permanent residence, if they can?
Yes, they can. But that does NOT mean they should. As many unhappy clients come to figure out, over time, that green card turns from a blessing into a curse.
It’s really rather simple. If you have a green card, you are a permanent resident. That means you reside in the United States permanently. If you are basically living back home and having to come to the United States every year just to “keep your green card” then you are headed for trouble.
Yes, we know the stories of Uncle and Auntie who have been living in Hyderabad for 25 years and never had any problem using their green card to enter the United States. Just because it seems so easy for Uncle and Auntie does not mean it will be that easy for your parents. And you should tell Uncle and Auntie that it won’t always be easy for them, either.
When a permanent resident returns to the United States, their name is run through several federal databases. Just because Uncle’s passport was not stamped when he went through customs in New Delhi does not mean that the United States government does not know he was out of the United States.
This is because nearly all carriers – airlines, cruise ships, trains and other vehicles report certain information to the federal government. We once had a client who left the US on a cruise ship that docked on a Caribbean island for just a few hours, and the client reboarded the ship, showing a passport only as identification to the ship’s security officers. Several months later, the client’s green card was denied, because USCIS knew that the client had left the United States before receiving advance parole.
So why do some people seem to not have a problem? Possibly it is because the databases have not flagged that person…yet. Or the officer does not notice, or decides (through their own discretion) to give the person the benefit of the doubt. Or the airport is so busy they simply don’t have the time. It could be a number of reasons. But it’s a waste of time to wonder why.
What you need to know is that to keep a green card, at least 6 out of every 12 calendar months should be spent within the United States. If you spend more than 12 months outside the US, the green card is deemed abandoned (unless you get a reentry permit.) If you spend between 6 and 12 months outside the US, there is only a presumption of abandonment. For several years, it might not be an issue because officers would not have clear proof of abandonment. However, if the person stays outside the US, say, 8 to 9 months or more out of the year, and does that repeatedly for 5 or more years, then officers are going to get suspicious and flag the person for secondary inspection and ask them to prove they haven’t abandoned their intent.
So: Less than 6 months out of the US: green card safe. More than 12 months outside of the US: green card lost. In between 6 and 12 months outside the US : gray area; green card may be safe at first, but as time passes, your risk of losing the green card becomes higher and higher.
It’s all the more troublesome because in the initial years, nothing happens and so the returning green card holder gets a false sense of security. Then, out of nowhere, they get led down the hallway and questioned for 3 hours, right after (usually) a long, tiring international flight. And be forewarned: there is no right to have a lawyer with you at the border.
The main lesson here is: apply for the immigration benefit that fits your situation. Just because you qualify for other benefits doesn’t mean it’s a good idea to apply for it. You might think it’s easier (and it might be, at least initially) but as several of our clients can attest, that green card turns into a real burden.
If the person is not going to live in the US, and not going to work, and just wants to be able to come and go with ease, and has all their property, job, wealth, and ties back home – then the appropriate visa category is B-1/B-2. If they start spending more time in the US, then they can always file for permanent residence based on their US citizen son or daughter over the age of 21. A consultation with a lawyer beforehand can save a lot of headache down the road.
And if you’re in that small but noxious minority that filed for their aging parents’ permanent residence just so they can claim benefits in the United States – know that you are abusing the system, and that the databases that store information on arrivals and departures is connected to the database that stores information on disbursement of federal (and state) benefits. At some point, a computer will be able to tell whether a person is abusing the system when their green card is swiped at the border.
We’ve given this piece of advice many times: Do things legally, and you’ll have to do a little more work at the beginning, but very easy and relaxing later. Do things illegally, and it’ll be easy at first, but not much fun later.