Dear Attorney Gurfinkel:
I am a green card holder, and have petitioned my wife and children. I know that it will take a few years until the priority date on their petition becomes “current”, enabling them to be processed for their immigrant visas.
Would there be a problem if I go back to the Philippines to live, while waiting for the priority date to become current?
Very truly yours,
K.M.
Dear K.M:
If an immigrant (green card holder) stays outside the US for more than one year, it could be considered that the green card holder “abandoned” his or her green card. This means that he could lose his status as a green card holder. Then, any petitions that he filed that are still pending could also be abandoned.
I had one case where a father had petitioned his adult single son (F-2B), but the father liked to stay in the Philippines. Although he got a “re-entry permit” (a document allowing an immigrant to stay outside the US for just under 2 years), he overstayed the re-entry permit by a few days. When he tried to return to the US, he was not allowed to board the plane.
The problem was that the priority date on his son’s petition was almost current, but if the father abandoned his green card (by staying outside the US) then the son’s petition would no longer be valid as well.
I had to fight the case all the way to Washington DC to enable the father to return to the US, to keep his green card alive, and, we were then able to process the son for his green card. But imagine the stress and trauma the son was going through, thinking that after he had waited so many years for his green card, because his father had almost abandoned his green card, the son’s petition may have also been abandoned.
Another problem with a petitioner living outside the US for too long (whether the petitioner is a US citizen or a green card holder) is that the petitioner must be “domiciled” in the US, meaning that they are living permanently in the US If the petitioner is living in the Philippines (and thus not domiciled in the US), the petitioner would not be able to give an affidavit of support, which the petitioner is required to do in every single case, even if there is a co-sponsor.
So as you can see, it is very important for a green card holder to maintain his green card status in order to protect any family petitions he may have filed. If you must travel, at least get a re-entry permit, and make sure you come back before it expires.
I strongly advise, however, that you seek the advice of a reputable attorney, who can analyze your situation, and advise you on the best course of action.
* * *
Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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