This is immigration attorney Parviz Malakouti, and one common issue with green card holders,
especially in the year 2020 with the onset of coronavirus, is what does a green card
holder do if they have to spend a long time outside the United States and they don't want
to risk losing their green card? It's an important issue, it's a common issue, it's one that
I'm going to address in this video. So first of all, just to take a quick step back to
frame the issue, one requirement of having a green card, maintaining a green card, and
being able to apply for naturalization, is that one must maintain what is called continuous
residence according to immigration law, US immigration law.
Continuous residents basically means that you show that you are living your life and
spending your life and establishing your life continuously within the United States. This
is important to know, and this is a different requirement from the physical presence requirement
of more than six months per year, on average, for the five years before one applies for
naturalization. So continuous residence and physical presence, two separate but related
concepts that oftentimes get mixed up. In this video we're talking about continuous
residence, which is really the more important factor for determining whether a green card
holder is at risk for having their green card being abandoned.
So now first and foremost, if a green card holder is able to come back to the United
States within six months, let's say, for example, five months, five and a half months, that's
what they should do. That's important, that's the best course of action if possible. Now
for many green card holders, that's not possible. They may have a work obligation that requires
them to stay outside for six months, they may have a sick relative, they may be sick
themselves and be unable to travel for six months, or seven months, or 10 months, or
whatever. So in that case, if a green card holder is
outside of the country for between six months and 12 months, or if the green card holder
knows that they're going to be outside of the country, or at risk, even, of being outside
of the country for six or 12 months before they leave, there are things that a green
card holder can do ahead of time in order to prepare themselves, to basically build
their profile, in case they have to ever defend against an allegation of abandonment of green
card from US immigration, whether it be by CBP, or an immigration court, or in USCIS.
Now, what can a green card holder do? What are these actions? So to answer this question,
I'm going off of, first and foremost, the Code of Federal Regulations C8 CFR 315.5(a),
which I'm going to link to below in the video description, as well as my personal experience
as an immigration lawyer. So first of all, of the Code of Federal Regulations
lists factors that are to be considered in determining whether a green card holder has
abandoned their residency. These are not all the factors, these are just factors that are
listed. The factors that are listed in the Code of Federal Regulations are not exhaustive.
That means that these are some factors that can be considered, but they're not necessarily
all of them. So let's get into them right now.
The first factor in showing that a green card holder did not abandon their residency is
the applicant did not terminate his or her employment in the United States. So if at
all possible to maintain your employment, even if it's taking a leave of absence for
a period of time, that's one thing that you would want to do if possible.
The second factor, the applicant's immediate family remained in the United States. Now
this one sometimes people don't really have much control over this, this actually is related
to other people, maybe you have to bring your family with you when you go abroad. But if
at all possible to have a member or more members of the immediate family stay in the United
States while you're abroad, or for at least during the portion that you are abroad, that's
a factor that would work to your advantage. Number three, the applicant retained full
access to his or her United States abode. So this is an important one. This basically
means, did you maintain a home in the United States during that period that you were abroad
for six, seven, eight, nine, 10, 11 months? Very, very important one. So if at all possible,
you want to maintain your home, maintain an apartment, I know that could be costly, or
maintain access to some sort of abode in the United States. I actually had an interview,
by the way, earlier this year in which I was representing a couple that was applying for
naturalization. They spent over six months outside of the United States, and it came
down to, in the interview and analysis, or at least one factor in the analysis, was whether
that couple still had access to their home in the United States while they were abroad.
So that's an important one. And then D, the applicant did not obtain employment
while abroad. So if you leave the United States for seven months, you go pick up a job somewhere
else and you're working full time, that signals to immigration that you're not a green card
holder anymore. You're not making your residence in the United States, you've abandoned it.
So again, that could be a tricky one, because some people need to work to live, even if
they're they're abroad. But if at all possible, you want to avoid getting employment abroad
if you're going to be abroad for more than six months.
So those are the four factors that are listed in the Code of Federal Regulations, but like
I said, this list is not exhaustive. So here are my additional factors to those factors
that are listed by the Code of Federal Regulations. And these are things that in my estimation
could, or would, help an applicant show that they did not abandon continuous residency,
they did not break continuous residency when they were outside of the United States.
So the first one on my list is, continue paying your taxes in the United States. This is an
important one. So you want to continue paying your taxes. Even if you're abroad for more
than a year, you want to have that green card and keep that green card, you still need to
be declaring and paying taxes. The next one is, if you have an automobile, keep your automobile
in the United States, keep your registration, keep your car insurance. That shows that you're
still considering the United States as your home, even if you're spending a longer period
of time. That also shows that if you had to spend a long period of time outside of the
United States, it wasn't necessarily planned. It could have been something that came up
unexpectedly. The next one is maintaining your bank accounts
in the United States. If you're going to be abroad, don't clear out all of your United
States bank accounts, or stop having transactions. If you maintain your bank accounts, if you
keep having transactions in the United States, that's something else that shows that you're
still considering the US to be your home. Number four is related to the last one, which
is maintain your credit cards. Same thing, if you have credit cards in the United States,
maybe you want to make a charge on them every now and then at least to show that you're
still having your credit cards, you're still basically maintaining your financial profile
in the United States. And the last suggestion that I have is maintain
membership at any local professional organizations. Let me give you an example. I'm a lawyer,
I'm involved in many local professional organizations, AILA, American Immigration Lawyers Association,
I'm involved with ACLU, other organizations that are local to me. I maintain, let's say
for example I'm a green card holder, I want to go abroad, maintain my membership in those
organizations, maintain involvement in those organizations if you're volunteering with
them, or if you're involved in any type of projects. These are things, again, that can
show, that can signal to immigration that you're still considering yourself to be resident
in the United States. Now, as a practical matter, how does this
issue present itself? And there's one of three common ways that this issue of residency presents
itself. The first one is, and the one that I think most people are scared of, is not
being able to enter back into the United States. You have a green card, you leave the United
States, let's say you're abroad for nine months. You try to come back in after nine months,
CBP says, hold on, wait a minute, we think that you may have abandoned your green card.
They take it a secondary inspection, they start asking you questions, they start asking
for documentation. "You've been abroad for nine months. How do we know that you didn't
abandon your residency?" That's the first way it can present itself.
The second way it can present itself is if you are a green card holder, you're abroad
for seven months, eight months, you come back, and then you apply for naturalization. One
of the requirements for naturalization is the applicant has to have maintained continuous
residence for the previous five years, or three years if the applicant has applying
for naturalization based on marriage, but in this case let's say five years. If you
apply for naturalization and you had an absence of seven or eight months, even if you still
meet the physical presence requirement, you still may have a USCIS officer that's challenging
whether you broke continuous residents. And that, by the way, is the issue that was encountered
in the example I spoke about earlier, which I was representing a couple in a naturalization
interview. So that's a second area, second context in which this issue could present
itself is, if you are before USCIS in an actualization interview, being challenged on continuous
residence. The third common context that this can appear
in is related to the first one. You come back into the United States, you're trying to come
back to the United States with a green card, you've been abroad for eight, nine months,
CBP, maybe they say, "Okay, we're going to let you in this time, but you know what? You're
getting a notice to appear, you're going to be in immigration court because we think you
abandoned your residency." Then you have to go to immigration court, that's deportation
court, you might find yourself defending yourself before a judge. By the way, get a lawyer,
always, if you're in removal proceedings. You might be before an immigration judge having
to prove that you did not abandon continuous residents.
So in those cases, any one of those three cases, doing these things, these things that
we spoke about ,both that were mentioned in the Code of Federal Regulations, as well as
my additional list, having documentation for those can and will help you. This is not a
guarantee, doing these things is not going to guarantee that you're going to be deemed
to have not abandoned your green card, but undoubtedly, taking these actions is going
to improve your chances of being able to maintain that green card. Anyway, I hope this video
helps. If you need a consultation, feel free to contact my office. I'm a California licensed
immigration attorney based in LA, but represent clients from all over the world, all over
the United States. That's it, have a great one, good luck. And if you're traveling, make
sure you have a lot of fun.