Returning resident status refers to a permanent resident who has been outside of the US beyond an expected period (“for a protracted stay”) but has never abandoned their U.S.
residency (a term of art, not literally abandoning their ownership of a house). It all rests on
the intent of the immigrant but the longer the stay, the fewer ties in the U.S. that remain,
the conduct of the immigrant while outside the U.S. can all factor in as to whether the immigrant
intended to give up their U.S. residency. Plus, it’s hard to argue that the protracted stay was due to circumstances outside of her control if she was never physically detained by her husband,
held prisoner without the right to leave her foreign “residence” with him. To make the situation
even more unfair, the law automatically assumes that any children under the age of 16 who also had their green card when they left with the mother from the U.S. had the same intent as the mother. This seems really unfair to the child who has no choice but to go with the parent, so if
the parent cannot prove intent and circumstances beyond her control, the child is out of luck and
will lose his or her green card.
An example of how this works if the facts were just a little different (if mom had never left to be with dad), in one such documented case, as stated in the Department of State’s Foreign Affairs Manual:
In a particular illustrative case of protracted stay abroad by a child, an alien, born in Bermuda in 1941, was formally adopted at the age of six months. The adoptive mother and child were admitted for permanent residence in 1949 but approximately ten months later the child was returned to Bermuda because the adoptive mother reportedly was unable to care for the child properly and work at the same time. The child remained in Bermuda for six years, most of the time in the custody of a guardian. The adoptive mother in the United States contributed regularly to the child’s support but never visited the child. When nearly 14 years of age the child applied for a special immigrant visa as a returning resident alien under INA 101(a)(27)(A). The Department determined that the child’s protracted stay abroad was for reasons beyond the alien’s control [see 22 CFR 42.22(a)(3)] and, therefore, had not affected the child’s status as an alien lawfully admitted for permanent residence.
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
