Other Immigration Law returning resident visa - what counts?

[visaQ]

I am a green-card holder (wife is American) but I have been out of USA most of the time since I got the card, as my wife is a student outside of the USA. She has another 2 years to go of her studies.

When I was recently in the USA I learnt that the fact she's a student may not be enough of a reason for me not being in the USA now (even though I file tax returns, have a drivers' license there etc), so I could be deemed to have abandoned my permanent residency status. However, we do fully intend to move back as soon as her studies are over and I don't consider myself to have abandoned residency.

I couldn't file a re-entry permit on a recent visit, as my green card is still conditional and would run out well before the re-entry permit, so it would be pointless.

I was told by an immigration officer that a transportation letter from the local embassy may help? But isn't that just for those whose green card is mutilated or lost?

I was also told to consider a returning resident visa. But would I be eligible for a returning resident visa on the grounds that I had to wait until my wife finished her studies? Is that enough of a reason for such a visa to be granted?

Thank you.

 

[NYClex]

There might be some problems. You should have applied for a reentry permit.

The Green Card is a privilege that gives you the possibility to live and work in the U.S. If for whatever reason you do not use this privilege the law assumes you have no more interest in it, abandoned it, and takes it away from you.

In detail the law treats this as follows: If you are absent from the U.S. for more than 6 months up to 1 year the law can question your status. The USCIS can try to prove that you have abandoned status.

If your are absent for more than one year things get much worse: the law now assumes that you have abandoned your status (called a "prima facie case of abandonment") and upon your next entry the officer has the duty to keep your green card and refuse you entry. Now it is your job to find enough facts that prove that you did not abandon your status.

Of course, what people can and should do, is apply for a "reentry permit" prior to leaving the country. Then there would not be any prima facie case of abandonment.

Now, proving that you have not abandoned your status has become more difficult since in 2003 the 5th Federal Circuit Court of Appeals clarified the rules in Zeba Moin (Zeba Moin et.al. v. John Ashcroft, U.S. Attorney General docket no. 02-60449) :

First you need to prove that you are returning to a residence you never relinquished:

To qualify as a returning resident alien, an alien must have acquired lawful
permanent resident status in accordance with our laws, must have retained that status from the
time that [she] acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad.; Matter of Huang, 19 I. & N. Dec. 749, 753 (BIA
1988)

That means you must have lived in the U.S. before you left the country. It is not enough for example just to own real property, you must have had established a residence here, that usually means, have worked here, or studied here, or similar.

Second you must prove, that you intended to return to this residence "within a short period of time!" (Singh):

"Second, Moin argues that she always intended to reside permanently in the United States.
The relevant intent, [however], is not the intent to return ultimately, but the intent to return to
the United States within a relatively short period." Singh v. Reno, 113 F.3d at 1514.

So the longer you wait, the more difficult it will be to prove that intent.


Now the good news is, that since you went with your wife and your wife has a good reason for being abroad, that should make it easier to argue. What you probably would need to show is: Your wife's absence is only for a reasonable time, a short time, and especially important, only until a foreseeable point in the future (that would be the completion of her studies).

The law says: "A trip is a
temporary visit abroad if (a) it is for a relatively short period, fixed by some early
event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable
possibility of occurring within a relatively short period of time."
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also Ahmed v. Ashcroft, 286 F.3d 611,
613 (2d Cir. 2002) (per curiam).

You also would want to show why it was reasonable for you to accompany your wife.

So what you should do is consult an immigration attorney before your next trip to the U.S. (since you would not like to be refused entry and be sent back) and discuss the best strategy with him. It might be a returning resident visa, it might be risking refusal and appearance before an immigration judge, it might be dealing with the U.S. embassy. This must be evaluated by the attorney based on the details of this case.