November 16, 2012 | Family Petition, Immigrant Visas, Legal Permanent Residents (LPR)
Q. I was a permanent resident, living in California, married to an American citizen. We had two kids. In 2008 I came to Brazil and I stayed there for more than a year. I tried to get permission to return , so I tried to get re-entry permission, it wasn’t approved and I was told to wait until March 2012. What should I do now? Should my husband apply again and start over the process? He is still in California and we are still married. -Joelma Tinkler, Sao Paulo Brazil
A. If a Lawful Permanent Residents (LPR) remains outside the United States for more than one year without first getting permission to do so (a Reentry Permit), then the United States Department of Homeland Security (DHS) assumes that the LPR has abandoned his or her residency regardless of whether they are married to U.S. citizens. 8 CFR §211.1(a)(2). There is an exception for certain civilian or military employees of the U.S. government (and their spouses and children) , who are stationed abroad with the spouse/parent under official orders, but that doesn’t seem to be your situation. 8 CFR §211.1(a)(6). Also, a permanent resident card is not valid for reentry after one continuous year abroad.
If you tried traveling back to the United States and tried to reenter the United States using your green card (Form I-551) after being outside the United States for more than one year, an officer at a port-of-entry, like JFK airport, for example, a DHS immigration inspector might claim you have abandoned LPR status and place you in removal (i.e., deportation) proceedings – charging you as not having proper immigration documents. Sometimes, a port-of-entry officer will admit a person who has been outside the United States for more than one year if the person can prove that he or she did not abandon U.S. residence.
If a person has a genuine claim to LPR status but the DHS believes that the person has abandoned their LPR status, then the DHS has the responsibility (i.e., burden) to prove that the person in fact abandoned their residency.
When determining whether an LPR has abandoned their lawful permanent residence, the DHS will look to see (1) that the person was lawfully granted permanent residence before departure from the United States, and (2) that the person is returning to their home in the United States after a temporary trip abroad. Matter of Huang, 19 I&N Dec. 749 (BIA 1988). A “temporary trip abroad” does not depend only on how long you have been outside the United States. Instead, depends on your intention to return to the United States during your trip abroad. If an LPR has an uninterrupted intent to return to the United States but circumstances beyond her/his control have prevented her/him from returning to the United States, then it is possible that the DHS might determine that s/he has not abandoned residence. This becomes less and less likely, however, the longer the person is outside the United States. To determine whether the person had a temporary trip abroad, the DHS will look to the person’s intent to return within a relatively short period of time as well as whether there is a definite end of the absence from the United States. Matter of Huang. For example, a contract with a U.S. employer to work outside the United States and that was to end on a specified date. In determining whether the LPR intended to return to the United States within a relatively short period of time, the DHS will look at the purpose of the departure, the duration of the absence from the United States, and the person’s home, family, and employment ties to the United States. Although it is possible to show that an extended absence from the United States was nevertheless temporary and therefore did not lead to the abandonment of LPR status, it can be very difficult to prove it.
A permanent resident who knows before leaving that he or she will be away for more than a year, it is best to apply for a reentry permit before leaving. The permit is a way to tell immigration that you will be abroad for a long time, but that you are not abandoning your residence. You apply for the permit using USCIS from I-131.
Getting back to your situation, I see no reason why anything would have changed in March 2012. It seems that you applied for a Special Immigrant Returning Resident Visa (SB-1), which is a special category of immigrant visa for LPRs who can demonstrate that (1) they had the intention to return at the time they departed the U.S. and (2) their stay abroad was “for reasons beyond the LPR’s control and for which they are not responsible.” 9 Foreign Affairs Manual (FAM) §42.22 Note 1. The LPR outside the United States carries the burden of establishing eligibility for this type of visa. The burden is very high, especially if you have been in Brazil since 2008 (i.e., almost 5 years). Types of evidence a U.S. consulate might accept would be proof of filing U.S. tax returns for the past year or years , property (leased or owned) in the United States, the presence of other close family members in the United States, and evidence of any other financial ties to the United States. They would also expect you to have a very good reason for being outside the country for such a long period of time, and if the reason is medical treatment there would need to be convincing evidence showing either that you were not well enough to travel back to the United States for treatment or that the treatment is not available in the United States.
Since it seems that the U.S. consul in Brazil denied your SB-1 immigrant visa application, your husband could petition for you once again by filing Form I-130 with the United States Citizenship and Immigration Services (USCIS). As well as paying all the fees to consular process for an immigrant visa again. You would have to demonstrate that the relationship still exists.