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Preserving Green Card and Family-based Green Card Overview

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Family-Based Green Card Overview

Immediate relatives of U.S. citizens have the advantage of not being restricted to quotas.

Individuals who qualify as immediate relatives:

i) Spouses of U.S. citizens
ii) Unmarried people under the age of 21 who have at least one U.S. citizen parent
iii) Parents of U.S. citizens, if the U.S. citizen child is over the age of 21

The preference relative category is limited by quotas, unlike the immediate relative category. The four preferences of relatives are as follows:

i) Family first preference
Unmarried people of any age who have at least one U.S. citizen parent.

ii) Family second preference
Spouses and children under 21 years old, of green card holders.
2B: Unmarried sons and daughters of green card holders who are at least 21 years old.

iii) Family third preference
Married people of any age who have at least one U.S. citizen parent.

iv) Fourth Preference
Sisters and brothers of U.S. citizens, where the U.S. citizen is at least 21 years old.

Preserving Green Card Status

To discuss applying for a Green Card with an immigration attorney
contact our office at 415-986-6186

Preserving Green Card Status During Trips Abroad – Re-entry Permits
It is an all too common situation — after years of bureaucratic entanglements, a person finally obtains lawful permanent residence in the United States, only to find that business or family concerns will keep them out of the U.S. for an extended period of time. Often, the lawful permanent resident (LPR) will try to re-enter the U.S. and then have a port of entry officer or consular official tell them they have abandoned their permanent residence status.

Absences from the U.S. of more than six months raise a rebuttable presumption that an individual intends to abandon permanent resident status, and absences of more than one year invalidate the green card as an entry document unless the person holds a valid re-entry document. This means that a foreign national who has been continuously abroad for more than 12 months may still be a permanent resident, but a special immigrant visa issued by a U.S. consul may be necessary to re-enter the U.S. unless the individual has a valid re-entry permit.

Extended absences may also adversely affect U.S. citizenship eligibility, despite the existence of a re-entry permit. Therefore, when planning an extended trip abroad, it is necessary to plan ahead to avoid abandonment. Among the many factors that influence the decision on abandonment are the length and reason for the absence and the number and type of connections the LPR maintains in the U.S.

Re-entry Permits
Of course, the LPR can obtain a re-entry permit if the absence is to be longer than one year. A re-entry permit, filed on Form I-131, is usually granted for two years and serves as recognition by the U.S. Citizenship and Immigration Services (USCIS) that the individual does not intend to abandon permanent residence despite prolonged absence from the U.S.

This application is typically submitted by the individual while physically present in the U.S. and must be used prior to the expiration of the document, or two years from the date of issuance. If the holder of a re-entry permit is a conditional permanent resident, the permit will be valid to the date the conditional resident must apply for removal of conditional status.

Documentation of Intent to Remain in the U.S.
One of the most important factors in preserving permanent residence is the proper filing of U.S. tax returns while abroad and filing as a U.S. resident and not as a nonresident. Because of international tax laws, there will often be no tax owed to the U.S. government, but failure to file a return is almost always considered a sign that LPR status has been abandoned. The LPR should also maintain a bank account and credit card(s) in the U.S, both of which should be active. For example, if the LPR is employed abroad, the salary should be deposited in the U.S. account. The LPR should also continue to renew his or her U.S. driver’s license. If possible, the LPR should also purchase property in the U.S. If the LPR’s absence is due to employment, a letter from the employer detailing the terms and length of employment is very important. If the absence is for family or personal reasons, these should be noted. While such reasons are acceptable, the ease with which they can be manipulated means they should be well documented. A commonly held but mistaken assumption is that a visit every year to the U.S. will preserve LPR status. While an LPR needs only the green card to re-enter the U.S. after an absence of less than one year, this is not enough to indicate the intent to remain a resident of the U.S. As mentioned above, the LPR must take additional action to preserve his or her status.

CCA Regulations for Children Adopted Abroad

The Child and Citizenship Act (CCA) of 2000 provides U.S. citizenship to certain children born abroad. In 2004, U.S. Citizenship and Immigration Services (USCIS) restructured the processing of Certificates of Citizenship for certain children adopted abroad. These procedures target newly entering IR-3 children, those fully and finally adopted abroad, who are automatically U.S. citizens upon arrival in the United States.

The USCIS implemented a streamlined process for newly entering IR-3 children, which ensures that these children receive the Certificate of Citizenship within 45 days of entering the U.S. A foreign-born child automatically acquires citizenship on the day that the following requirements are met:

  • The child must have at least one U.S. citizen parent, whether by birth or naturalization. The parent need not have been a citizen at the time of the child’s birth;
  • The child must be under age 18;
  • If the child is adopted, the adoption must be full and final; and
  • The child must be admitted to the U.S. as an immigrant or lawful permanent resident.

Since automatic citizenship is an operation of law on the day the child is admitted to the U.S., no application is necessary.

A child who is a citizen under the CCA permanently residing in the U.S. can receive documentation by applying for the Certificate of Citizenship. The necessary application is Form N-600 (Application for Certificate of Citizenship). The completed form should be submitted to the USCIS office with jurisdiction over the region of residence along with the necessary fees. For adopted children, evidence of a final adoption and evidence that the child is a permanent resident of the U.S. must be submitted.

A child residing abroad can apply for citizenship by filing form N-600K (Application for Citizenship and Issuance of Certificate under Section 322). This application can be filed at any USCIS office or suboffice in the U.S. Children presently outside the U.S. can obtain U.S. citizenship if five requirements are met:

1. The child must have one U.S. citizen parent, whether by birth or naturalization;

2. The U.S. citizen parent must have resided in the U.S. for at least five years, at least two of which must have been after age 14, or have a U.S. citizen grandparent who meets this residency requirement;

3. The child must be under age 18;

4. The child must be residing outside the U.S. in the physical and legal custody of the U.S. citizen parent; and

5. The child must be temporarily admitted to the U.S. in lawful status and must maintain that status until taking the oath of citizenship.