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Green Card Holders Wanting to Sponsor Spouse Need to Watch Out for Abandonment Issues of their Own
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Posted On: January 19, 2013

Obtaining a green card is a dream come true for many immigrants and the last thing any green card holder would want is to loss his or her permanent resident status. Many people apply to become citizens through naturalization as soon as they are eligible to avoid the possibility of ever being stripped of their residency and having to worry about how long they’ve been outside of the US while a permanent resident. 

Abandonment
A green card holder may lose permanent residency if they commit a certain criminal act or acts after becoming a green card holder, lied to obtain their green card, or have taken certain actions that show CIS or CBP that they no longer want their green card. These acts of abandonment can include if the green card holder:

1) Moves to another country intending to live there permanently

2) Remains outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether a green card holder’s status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year (and . . . a re-entry permit is only one factor CBP looks at in determining whether you’ve abandoned your status – it doesn’t guarantee you’ll be let back in);

3) Remains outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. Remember, though, in determining whether a green card holder’s status has been abandoned any length of absence from the United States may be considered, even if less than 1 year;

4) Fails to file income tax returns while living outside of the United States for any period’;

5) Declares his or herself a “nonimmigrant” for purposes of U.S. tax returns (to avoid paying US taxes);
Customs and Border Patrol (CBP) will look at the totality of the circumstances when a permanent resident is leaving or entering the U.S. They will inquire into how long they have stayed outside the country, for what purpose, and will weigh the green card holder’s answers against the elements listed above as well as any documentation you have proving that you still have significant family ties in the US, a life here (such as bank accounts that are actively used, property, work obligations, etc.)

Green Card Holders Wanting to Sponsor a Spouse
A green card holder may sponsor his or her foreign spouse in obtaining some type of legal status to enter the U.S. The motivation for such sponsorship is apparent, green card holders want to be with their spouses and build lives together in the U.S. However, the risk for abandonment arises frequently in these situations due to the fact that the green card holder spouse all too often leave the U.S. to be abroad with their spouses during the processing of the sponsorship application.
This can come up easily for newlyweds, especially if immigration bars or the lengthy waiting periods on the visa bulletin for some countries mean that that the immigrant spouse can’t come to the US for 8-10 years. The permanent resident spouse wants to be with their spouse and lives with them abroad – but this could bring down the whole application if CBP sees how long the green card holder has been out – the catch 22 (it’s a real marriage so you want to stay with your spouse, but you can’t stay out long without jeopardizing your own green card).
For example, a permanent resident woman married to a Mexican man may find it convenient and almost irresistible to cross into Mexico to wait with her spouse to obtain status. As stated in the first element above, moving to another country permanently is grounds for abandoning a green card. Here, let us assume that the green card holder spouse spent more time in Mexico than in the U.S. in order to be with her husband. With those facts, for all intents and purposes she would be living in Mexico and making a life there. This goes against a very important policy consideration that the U.S. government has in allowing for permanent residence in the first place: the U.S. wants immigrants to live, work, pay taxes, and make their lives in the U.S. Thus, even though the hypothetical green card holder woman might have a legitimate reason to want to be in Mexico to wait for her Mexican husband to obtain status, this is not a sufficient reason for the U.S. government. She would still be at risk for abandoning her green card, thus negating the sponsorship application altogether. 

There may be alternatives to just waiting out the green card eligibility in the foreign country. Perhaps the immigrant has a college degree or job offer in the US? Trying for a long-term non-immigrant visa (which would have the benefit of the immigrant being able to visit their spouse in the US) may be possible. Consult an attorney regarding your options.

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Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com

13,649 total views, 3 views today

Julia Robert March 18, 2013 at 6:50 pm

Thanks for sharing this nice post. It is not a straightforward procedure and immigration officers ensure that the case is genuine, so don’t hide any thing if you plan to get green card through marriage.

Wanda Davis April 9, 2013 at 10:43 pm

Thanks for sharing! I was wondering when this would come into play when considering my own immigration lawyers in Chicago and our issues! Thanks again for posting this!

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