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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94418
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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My wife has a US greencard (she is considered a permanent US

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My wife has a US greencard (she is considered a permanent US resident); however, I got a job that took me to Canada and upon crossing the US/Canada border, we never did relinquish the greencard to the US customs border & protection agency. We have been in Canada for over three years now; however, we have made frequent trips back to the US to visit family and vacations. She has never been outside the US for more than a year due to the frequent trips we make to the US. My wife would cross the US boarder using her Canadian passport in fear that they would take away her greencard. The US customs and border protection agents have threatened many times to take it away from her, but each time we said we didn't have it; however, one time, when she flew into the US, she was about to voluntarily hand it in, but there they told her she didn't have to since she had the intention of moving back to the US. My wife, children and I are all Canadian citizens (we are considered all dual citizens of the US and Canada with the exception of my wife who is a Canadian citizen with a US greencard). My wife and I have been married for over 9 years, we own a home in the US (which we currently rent out to pay for the mortgage) and we still have US bank accounts and file joint tax returns in the US. We also have additional family ties to the US where she has two uncles that are US citizens and live in the US and my parents and all my brothers and sisters are US citizens with some of them living in the US.

Based on the facts outlined, does my wife actually have to hand in her US greencard? I've contact USCIS and they have indicated that since she has been crossing into the US and has never been outside the US for longer than a year, she does not have to relinquish the card; however, the border is telling us that she has to be residing in the US to keep the card, that is why it is called a permanent resident card. He also asked if we were receiving Canadian government benefits, we said yes, healthcare. He said that was not allowed if she is wanting to maintain her US permanent residency.

I am moving back to the US in either August or December (date is pending collaboration with the Canadian & US partners in the accounting firm I work for). The last time we were in the US was in April 2013 when I went for the job interview. My wife accompanied me. This time upon crossing, the border said this was the last time she would be able to cross into the US without relinquishing her card unless the next time she crossed was to move ourselves and belongings back to the US. We have trip planned in July to go to the US and we are worried they will deny her entrance and possibly permanently deny her entrance for who knows how long. My next question is what do we do to ensure her greencard is not confiscated so that she can return to the US once we move (whether it be in August or December)?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. Thank you for using our service. All I ask is that before you sign off, you rate me positively. If you are inclined to use the "poor service" or "bad service" options, please ask follow-up questions first and give me a chance. Sometimes the law doesn't have a good solution, but I will try hard to find it if it is available.


Anyone that is a Lawful Permanent Resident (LPR) and is outside of the U.S. for 180 days or more within any 12 month period (not necessarily calendar year) creates a rebuttable presumption of abandonment of residency. That presumption can be rebutted by evidence to the contrary such as filing U.S. taxes, maintaining a home in the U.S. and paying that mortgage or rent, maintaining a U.S. drivers license, U.S. bank accounts with significant movement, etc.


Someone that has been outside of the U.S. for more than 1 year without first having an approved re-entry permit has abandoned their residency and only in very few exceptions (such as serious illness) can they get it back.


So what worries me are two things:

1) She obviously has many trips outside of the U.S. that add up to more than 180 days within any 12 month period.

2) She has used her Canadian passport instead of the green card to enter which indicates that she intended to abandon her Residency all this time.

So what is your plan? For her to enter the U.S. when? And when will she stay permanently?
Customer: replied 1 year ago.

Our last entry into the US was in April and we did use the greencard to enter. She also used the greencard to enter one other time last year (I believe it was in June). We plan to move back permanently to the US in either August or December, pending negotiations with the firm; however, we plan on going to the US in July for a family vacation and then return to Canada to finish packing up our belongings. We will permanently be in the US in either August or December (we should find out this week whether it's August or December).

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Well, it's risky since there are probably many 12 month periods where her time outside of the U.S. was more than 180 days and because in the past she used her Canadian passport to enter and not her Residency. However, she likely will not have an issue entering. The issue will come in the future when she applies for U.S. Citizenship. They will be asking about all her trips since she became a Lawful Permanent Resident. If she cannot prove that she was not abandoning her Residency during those periods, then she would be denied and could lose her Residency status. Loss of Residency most likely won't happen because they know that IF the tried to deport her, it would be a waste of their time and money because you will just apply for her to get Residency again and she would not be denied. So that's the worst that can happen. But in the end, either way, she should be ok. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!
Customer: replied 1 year ago.

Thank-you for the response. Just to clarify (I just talked to my wife and I was incorrect on some facts) she has never been outside the US for longer than 180 days. We specifically made sure we traveled back to the US at least every six months. When we travel, she would provide her Canadian passport to US Customs (except on a few occasions where we were asked to show the greencard) and then on other occasions the agent would only ask if she had it with her. She actually has always had the greencard with her when she has traveled to the US except on one occasion.


 


Once I have all the particulars worked out with this job and I finally have signed the offer letter (which will be before our next trip to the US in July) would it be correct to tell the customs officer at the border that our residency is in California, since I accepted the offer and we are officially moving to California? Or could we say we reside in Utah since we own a home in Utah? We start getting all this grief from the border when we say we currently reside in Canada and that is when they try to take the greencard from her.


 


You mentioned that we shouldn't have an issue entering; however, in our past crossings, we seem to always have some sort of an issue entering into the US due to her having this greencard. The last time we entered the US in April, the scanned her greencard and we were told that the next time we entered we would have to be bringing our belongings with us, otherwise she would have to relinquish the card.


 


What do we need to do or say at the border or should she be filing any forms to ensure she does not have any problems crossing into the US in July and then again when we move?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
No. You are not understanding. When you add up the trips in any 12 month period, do any add up to more than 180 days? So for example, let's say 2 years ago, she returned to the U.S. in March for 2 weeks and left back to Canada. She came back 5 months later in August and stayed 2 weeks and left again for 4 months and came back for 2 weeks then left again for 5 months. If you add out the time outside, it adds up to more than 180 days, doesn't it?

You see, there are TWO laws at play and most people (such as yourselves) are only aware of one. That one has to do with not interrupting continuity of Residency for Naturalization purposes. So a short trip back every 6 months satisfies that law. But the other has to do with abandonment of Residency which is what I explained in my first Info Request. Here is an official link:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3f443a4107083210VgnVCM100000082ca60aRCRD&vgnextchannel=3f443a4107083210VgnVCM100000082ca60aRCRD



What I meant by no issue is that she would not be turned away. The WORST that could happen is that they confiscate her green card and parole her into the U.S. and schedule her for deportation hearing before an immigration judge where she can try to prove to the judge that she did not have the intent to abandon her Residency even though she was outside of the U.S. most of the time and would just come back for a few weeks every 6 months. Remember the list that I gave you about her paying taxes, maintaining a home, job, accounts, etc. all in the U.S. during the times outside of the U.S.

But like I said, they probably won't bother because it would be a waste of time and money for the government as IF the worst happens, you can probably just file for her again to get a new Residency status.

And honestly, that would probably be best because that way, even though it costs you more money, once she has that new Residency, she could easily apply for U.S. Citizenship a few years later.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
Customer: replied 1 year ago.

Thank you so much for the clarification and additional information. You have been amazingly responsive.


Would it work to apply for the returning Resident (SB-1) immigrant visa? The only reason why she has been living outside of the US for as long as she has is because of me and my job. This looks like it would be an easier process to have her permanent resident status reinstated than to reapply for a permanent resident card. I thought if we started the permanent resident application process again it could take up to 6 to 8 months to obtain (may be longer) and if we have to cross in July or permanently move to the US in August, this wouldn't be feasible. The SB-1 would only take up to 3 months.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Most likely not. Why? Because the reason that one would qualify for an SB-1 would be that they stayed out too long and the reason was beyond their control. This is usually some medical issue. And even if you were to get an SB-1, that still will not fix any problem in the future if she applies for U.S. Citizenship. Please do not forget to rate me positively. Since I am not paid a salary, it is the only way that I get paid. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94418
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
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