A Green Card Holder and Absent from the US for more than 180 days? Beware.

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One of the biggest misconceptions about immigration law is that a green card is the same as citizenship  –only without a passport or the ability to vote. But what many permanent residents do not realize is that they can be deported.  The reasons are many: not only for a conviction of a serious or drug-related crime, but also for abandoning their residency in the United States or becoming a “public charge”.  The question of deportability can come up when applying for naturalization, or after an absence of more than 180 days from the United States.

Imagine a situation where a green card holder who uses public benefits in the US  leaves to visit his home country.  During his visit, his father gets sick and he needs to stay to help take care of his father.   After a 7 month absence from the US, he returns.  Upon his arrival at the airport, the inspector will consider him as a permanent resident. However, because of the absence of more than 180 days, the permanent resident is subject to most of the same general admissibility criteria as a tourist. The admissibility criteria are all-encompassing, including criminal, security, health, and financial issues – Sections 212(a)(2), 212(a)(3), 212(a)(1), and 212(a)(4) of the Immigration and Nationality Act, respectively.  If the airport inspector learns that the permanent resident has used public benefits in the United States, then the inspector can find him inadmissible under Section 212(a)(4) and place him in deportation proceedings.

Or imagine that the airport inspector admits the green card holder back into the United States. Several years later, the green card holder applies to naturalize.  The naturalization examiner has the right to review the admissibility of the green card holder at the time of his arrival back to the US after a 180 day absence, including whether he used public benefits in the United States before his departure.  In other words, not only can the examiner deny the naturalization application, the examiner can also seek to take away his green card and refer him for deportation.

While in either scenario the green card holder has the ability to present his case before an immigration judge who will make the final decision, no one wants to have his or her fate hang by a thread.  No one wants to worry about the possibility of being sent back to his/her home country, one that perhaps he/she immigrated from 5, 10, 20, or more years ago.  While sometimes delays abroad during a visit are unavoidable, and it may become necessary to apply for a special permission to return to the US if the absence is for more than one year (called a returning resident SB-1 visa), one must consider the potential consequences. This is becoming all the more acute with the Trump Administration’s laser-like focus on those who use public benefits – for new immigrants as well as current green card holders.

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