Home For The Holidays
I recently had the opportunity to visit the Philippines as part of Ambassador Willy Gaa's annual tour, sponsored by the Philippine Department of Tourism. During this remarkable trip I traveled with nearly 700 Filipino-Americans some of whom had not been home in 15 or 20 years. It was an emotional trip starting with the clapping as we landed in the Airport in Manila, and as I met and conversed with other persons on the trip I learned many remarkable stories of people who had left their homeland but their homeland had never left their hearts. I also learned an important lesson as an immigration attorney, many of our clients seek our help, not because they want to come to the United States, but because they want to return home to visit family and see their country again.
With that in mind I want to caution travelers regarding the following potential problems with traveling outside the United States:
Extended periods of travel: Often legal permanent residents (green card holders) is that they return home for extended periods of time, whether to complete schooling, care for a parent who has fallen ill or attend to other family or business matters in the Philippines. The problem is that extended periods of absence from the United States are often challenged at the port of entry (airport) as the resident attempts to return to the U.S. For example, periods of absence exceeding one year qualify for abandonment of status under the regulations. Periods as short as six months however also qualify for abandonment where it is revealed that the resident acquired property, was employed or otherwise resided abroad. In addition abandonment by a parent can be applied to their legal permanent child as well.
Re-Entry Permits: To protect your status in case of extended absence from the U.S. it is recommended that a re-entry permit be applied for and approved prior to departure from the United States. Even so a re-entry permit while it allows for re-entry following an extended stay abroad, it does not guaranty re-entry. Technically it forces USCIS to consider criteria other than the extended period of time, i.e. purchase of property, employment other connections to the foreign country. Therefore it is crucial to understand the fundamental criteria under which USCIS allows extended periods of absence from the United States for legal permanent residents.
Brief Returns to the U.S. to Preserve Status: Another common belief among legal permanent residents is that a once a year return to the United States will preserve their green card. Returning to the United States once a year will not preserve status where it can be shown that person is living and working abroad.
Advance Parole for Green Card Applicants: One of the most common questions from client is "may I travel while my wife/husband's petition for me is pending?" Although work authorizations may be obtained within several weeks of a legitimate application for legal permanent residency, the question of that applicant's ability to travel can be much more complicated. As a rule, immigration attorneys advise applicants not to travel. Attorneys want their clients available for scheduled interviews which are often set within several days of the interview notice. Also questions of admissibility and bars to re-entry will come up at the time of re-entry the U.S. even when in possession of an Advance Parole document. While many travelers treat their advance parole as a guaranty to re-entry it is in fact a trap for the unwary. For example a person who is subject to a 3 or 10 year bar to re-entry due to having unlawful presence in the U.S. (for example visa overstay), that person may be put into removal proceedings upon his or her return to the U.S. even when in possession of an Advance Parole documents.
The lesson here for travelers, is to carefully examine your immigrant status and immigration history with your attorney before traveling or even seeking permission to travel abroad. The second lesson is to naturalize at your earliest opportunity. The many ways legal permanent resident status can be lost are too numerous to list in this article, citizenship however is lost in one primary way, a voluntary declaration to U.S. officials.
Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly. Mr. DuPont Graduated from Yale University and USC Law School and is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont is a regular speaker with ILW, and past chairman of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with a 10 year practice in the field of immigration law as well as influencing Department of State and USCIS practices and policies through Federal District Court litigation including a Ninth Circuit Court of Appeals decision on V-Visas eliminating age-out of minor V-visa recipients