Green Card questions
I have a Green Card and plan on travelling out of the US for a long time. Can I keep my Green Card?
Maybe. The primary rule surrounding Green Cards is that you lose it if you give up your US residence. So in theory, if you, for example, show up with a moving van on the border to Canada or Mexico, there is a chance that a BCBP officer who notices this can question you and possibly revoke your Green Card right away.
The more common criterion, though, is time based. There are three important time limits to know about.
- If you are absent for less than six months, you will rarely have a problem. It is BCBP's job to prove that you abandoned your residency. Absent that, you are considered to never really have left.
- If you are absent for more than six months but less than a year, the burden of proof reverses. It becomes your job to prove that you are still a permanent resident. This is based on the concept that after six months, you have to be readmitted and have to prove that you are still admissible. As a side note, after an absence of more than six months, the various criteria for admissibility apply again, too. For instance, if you in the meantime had become inadmissible, say through an HIV infection, you might have a problem.
- If you are absent for more than a year, your Green Card will be considered almost automatically abandoned. Once that happened, there is usually no recourse. However, if through some miracle the immigration officer didn't ask you how long you have been out of the USA when you return, then you may be in luck and able to keep your Green Card after all. You should in this case not leave the USA for a very long time, and make it your bona fide residence again.
I need to travel out of the US for more than a year. Is there nothing I can do?
You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved.
With such a reentry permit, you can return to the US even after one year until the reentry permit's expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the US for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time.
I stayed out of the US and now lost my Green Card. Is there anything I can do?
There are two things that occasionally work. First, you may simply be able to reapply for a Green Card based on the same or another category. Second, you can apply for an immigrant visa as a special immigrant returning permanent resident at a US consulate. In order to get this, you have to prove that the long absence was outside your control, and that you never intended to abandon your Green Card. Unfortunately, this is usually very difficult to do.
Also, under certain very limited circumstances, you may be able to simply keep your Green Card anyway, even after absences of more than one year.
In Eshghan Khodagolian v. John Ashcroft, the Ninth Circuit of Appeals decided that in one very unusual case, Khodagolian was able to keep his GC despite an absence of more than one year, and several other long trips. The circumstances of the trips made it evident that he did not intend to abandon his US residency. Note that this is a very unusual circumstance and will rarely work! Even though this particular person won the case, he only won it on the second level of appeals. The inspector at the airport, as well as an immigration judge and the Board of Immigration Appeals (BIA) had all decided against him.
Finally, if you are lucky and are just not asked about the length of your absence, then you can enter the US with your GC regardless of how long you have been out of the country - but of course, you then need to remain in the US and establish a residence here. Otherwise, the next trip will carry the same risk. Relying on such luck, of course, is not a very reliable strategy!
How long is a Green Card valid for?
Thanks to Citli for inspiring this question!
There are several answers to this question.
If you received your Green Card through marriage, and have not been married for two years when you got your Green Card, you should have a conditional Green Card that is good for two years. Also, if you received your Green Card through investment (EB-5), you should have a conditional Green Card for two years.
You must apply for removal of the condition using form I-751 within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you have a problem and should consult with an attorney for advice.
If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated.
Unconditional Green Cards are good for ten years. This does not mean that after ten years, you stop being a legal permanent resident - only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use the GC to travel out of the USA, and you also cannot use the Green Card as evidence that you are permitted to work.
Do Green Card holders need to join the military?
Thanks to Shona for inspring this question!
The USA does not have a draft, but the USA does require all males age 18 to 26 to register, including illegal immigrants. This is known as Selective Service. Please see the Selective Service System Web site at www.sss.gov.
There is one exception: lawful non-immigrants do not need to register. However, you do need to register if, between the ages 18 and 26, you ever violate your status (for instance by dropping out of school or by losing your job as an H-1B).
I did not know about the Selective Service registration requirement, and now I'm over 26. What can I do?
Not having registered will usually only be a problem if you are applying for citizenship. You could try and show that you were not aware of the requirement through no fault of your own, but this is usually difficult. The easiest way of dealing with this is through time. Once you turn 31 (five years after the requirement ends), or 29 (three years after the requirement ends) if you are married to a US citizen and qualify for naturalization after the shorter residency, USCIS no longer cares about the evidence of your registration.
This web site is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. I made an attempt to provide somewhat accurate information as of the time of this writing, but the situation may well have changed by the time you read this. I am not a lawyer. I have no legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust. Keep in mind that there are no guarantees in immigration law. Most decisions are discretionary in nature, and even a competent immigration lawyer cannot guarantee success.
If you have further questions, please consider posting them in the newsgroup alt.visa.us, where there are a number of helpful individuals. I discourage emailing me directly. If you still want to email me your question, please send them through the Contact page. Don't expect an immediate answer, and I reserve the right to ignore your mail completely, too!
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