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U.S. permanent resident – commonly known as the green card – allows a citizen of another country to reside in the United States on a permanent basis. The resident is free to work (or not work), attend school, start a business, and/or otherwise do anything he or she wants to do.

Permanent residents are also free to travel outside the United States. However, problems may arise if the resident stays outside the United States for an extended duration.

Residing Outside the United States for More Than Months

To be eligible for U.S. citizenship, naturalization applicants must demonstrate that they have: 1) continuously resided in the United States for at least five (5) years prior to applying, or 2) continuously resident in the United States for at least three (3) years if the green card was obtained through marriage.

A resident who resides outside the United States for more than six months could break the continuous residence requirement to be eligible to naturalize as a U.S. citizen. This could delay the resident’s first eligible date to naturalize as a U.S. citizen.

Re-Entry Permits

Green card holders who have resided outside the United States for more than one continuous year could be determined to have abandoned U.S. residency – and the United States could require the resident to surrender or relinquish his or her green card. Green card holders who plan to reside outside of the United States for more than a year should first apply for and obtain a Re-Entry Permit (REP) prior to departing. The REP could allow the green card holder to return to the United States even if he or she has been abroad for up to two (2) years.

Returning Resident Visas

If a green card holder has resided outside the United States for more than a year, or beyond the validity of his or her REP, then a Returning Resident Visa (RRV) may be required. However, there are limitations on the eligibility for a RRV. Specifically, a green card holder may only apply for a RRV if circumstances beyond his or her control prevented them from returning to the United States within a year, or within the validity period of the REP.

In determining whether to approve a RRV, the consular officer considers whether the green card holder:

• Had a valid green card at the time of departure from the United States
• Departed with the intention of returning and that he or she did not abandon this intention
• Remained outside the United States for reasons beyond his or her control and for which he or she was not responsible

Conclusion

Think of the green card as a “use it or lose it” privilege.  So long as you demonstrate that you reside in the United States on a permanent and ongoing basis, you get to keep it.  The longer your visits abroad, the greater your chances of losing it.  If you plan to naturalize, keep your trips to less than six months.  If you plan to leave the United States for more than a year, obtain a Re-Entry Permit to protect yourself from having to surrender your green card.  Worse case scenario, if a dire situation prevented you from returning home while abroad, the Returning Resident Visa may be a last ditch option.

You’ve probably heard of Eduardo Saverin, a co-founder of Facebook who made billions of dollars and then renounced his U.S. citizenship in order to avoid tax consequences. While most of us will never come close to what Mr. Saverin made, there has been an increase in Americans renouncing their citizenship in the last few years. While reasons often vary from individual to individual, the overriding theme is usually that American expats loathe having to report all worldwide income to the IRS every year – even if they no longer reside in the United States.

While cross border tax issues are beyond the scope of this article, the fact is that Americans do have the option to renounce their citizenship if they choose. Furthermore, the process is much less complicated than people may think. Generally speaking, the applicant has to make an appointment at a U.S. consulate and attend an interview before a consular officer – stating his/her intent to renounce U.S. citizenship.

The decision to give up U.S. citizenship is an important one. Those considering this should ensure that they are citizens of another country – otherwise they could be rendered stateless (a citizen of no country). Furthermore, renouncing citizenship is permanent – you cannot reverse the decision if you change you mind later on. Once you give up your citizenship, you can no longer live, work or otherwise reside in the United States on a permanent basis without first acquiring an appropriate visa or green card.

As the one year anniversary since the Defense of Marriage Act (DOMA) was struck down approaches, it is a good time to reflect on how far U.S. immigration laws have progressed in just a few short months – extending the reach of its benefits to LGBT the many changes this has meant for same sex couples

On June 26, 2013, the U.S. Supreme Court issued two landmark cases which was a boon for LGBT rights. Hollingsworth v. Perry decided whether the Constitution barred California from limiting marriage strictly between a man and a woman. In its ruling, the Supreme Court lifted the 9th Circuit ban on gay marriage – thereby making same-sex marriage legal in California.

United States v. Windsor was based on a challenge denied federal benefits to legally married same-sex couples under DOMA. The Supreme Court struck down provisions of DOMA as unconstitutional, and as a result allowed the same federal benefits to married same-sex couples as traditional married couples.

Under U.S. immigration law, a U.S. citizen married to a foreign national may sponsor the foreign citizen for permanent residency – also known as a green card. Prior to the Windsor case, this benefit was not extended to legally married same–sex couples. Once DOMA was struck down, however, American spouses of foreign same-sex spouses were instantly able to sponsor the foreign spouse for a green card. Within a day of the ruling, the USCIS announced that it would begin accepting same-sex green card petitions – with the first one being approved merely a few days later. It was later confirmed that this benefit extended to fiancé visas – where a U.S. citizen could sponsor his/her foreign same sex fiancé under a K-1 visa.

As of the time this article was published, the following states permit same sex marriage: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

LGBT rights have come a long way in a short time. Immigration is just one of the newly acquired benefits associated with the downfall of DOMA.  Maximilian Law Inc. is a strong advocate of LGBT rights and has successfully obtained green cards for many clients in same sex marriages.

In 2012, the USCIS began granting certain undocumented aliens employment authorization for a period of two-year years. Approved DACA applicants may also be eligible for Advance Parole, which allows them to travel outside of the United States and to re-enter, provided that it was for humanitarian, educational or employment purposes.

DACA applicants are undocumented – meaning that they did not enter the country with inspection. Generally, undocumented aliens cannot adjust their status and get a green card even if they are married to a United States citizen. Advance Parole under DACA may provide a loophole

Example

Valeria was brought to the United States by her parents without inspection when she was 3 years old. She graduated high school in 2010 and was approved for employment authorization under DACA in 2012. In 2013, her grandmother in Mexico and became terminally ill. She obtained Advance Parole under DACA and was able to visit her grandmother for the last time before she passed. She returned to the United States after a one month stay. In 2014, she married her longtime boyfriend, John, who is a United States citizen. Since Valeria was able to provide proof that she re-entered the United States legally in 2013 under Advance Parole, John can petition her for a green card and she can now adjust her status without a ten-year ban or the need for a provisional waiver. She would not be able to adjust her status if she hadn’t visited her grandmother and re-entered under Advance Parole because her only entry prior to that was without inspection.

If you have been approved under DACA, or if you may be eligible, please contact us so that we can arrange a viable strategy for you.

In September 2012, the USCIS began approving employment authorization for certain undocumented aliens who were eligible under DACA (Deferred Action on Childhood Arrivals). The approvals were valid for two years, meaning that the first DACA approvals are set to expire in September 2014. Those who have been approved under DACA are eligible to apply for renewals as early as four months before expiration, meaning that some applications can be submitted as early as June 2014.

Maximilian Law Inc. strongly suggests that those who are looking to renew their employment authorization under DACA begin the process as early as possible in order to avoid an interruption in status. Learn more about DACA.