Immigration Issues/green card

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Question
Dear Madam:

I read through the questions and answers on this board and came to an answer you gave to a lady's question, this on 01/20/2009, see below:

Answer
Eileen Chun-Fruto, Los Angeles immigration attorney writes:

"Thank you for your questions.

As a matter of background, it's important to note that an absence of 6 months to a year raises a presumption that your residency in the US has been interrupted.  Meaning that even if you are eligible for naturalization, it can be deemed that you have 'abandoned" your permanent residency in the US and the USCIS can revoke your greencard.  It is a draconian rule."  

I am shocked!
In all due respect, is this answer really correct?  Staying out of the country for more than 6 months but LESS than a year does not cause the loss of one's green card.  It interrupts the continuous residence, if one cannot prove that it did not, by keeping a residence, filing for taxes, but it does not cause the loss of one's green card, this as far as I know.
Staying out out the country more than 6 months and less than 1 year will cause the loss of counting this year for the necessary 5 years' continuous residence in the US, only.  It does not terminate the status of being a legal permanent resident.

Please elaborate.
TIA


Answer
Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear S,

Thanks for asking clarification.  NOTE that I DID NOT say that being out of the country for more than 6 months but less than 1 year would terminate the status of being a legal permanent resident.

What I did say is that it "raises a presumption," which means that the CIS/CBP may PRESUME that one has abandoned their permanent residency if and unless the returning resident can prove by a "clear, unequivocal and convincing" evidence standard that he/she has not.  Whether the CBP officer chooses to make that presumption is up to that officer's discretion.

The CIS/CBP will look to all factors that the returning resident provides to show that his/her absence was not an abandonment and that he/she did maintain ties to their life in the US.  

If CIS/CBP decides a presumption is appropriate (that the returning resident possibly abandoned their residency), then it's up to the returning resident to prove otherwise.   The burden of proof is on the returning resident to show that his/her absence was not in fact an abandonment of permanent residency, and to do so with "clear, unequivocal and convincing" evidence.

What you state for purposes of naturalization and the continuous physical presence/residence is a related concept.  Calculating *when* one becomes eligible for naturalization is arithmetical.  However, in the course of a naturalization application, CIS will review all absences from the US and should any be more than 6 months or longer, they can ask for proof that the naturalization applicant did not abandon their residency during that absence, even if they made several more trips in and out of the US afterwards!

I @#%* you not.  This exact scenario came up 2 years ago in a naturalization interview where I was counsel, and the interviewing officer asked for proof that during my client's absence of 8 months abroad, he maintained permanent residency during that time.  And mind you, that trip was more than 10 years prior and he had traveled successfully in and out of the US since then.  We won that case, but it was no fun trying to dig out documentation proving residency.  

I believe that the CIS/CBP has become very conservative when it comes to exercising their discretionary authority (ie whether or not to presume someone has abandoned residency).   This is something that is becoming more common and especially in cases where CIS/CBP has been historically generous under the law.  

Eileen Chun-Fruto
www.fongandchun.com
www.immigrationvisaattorneyblog.com
http://www.superlawyers.com/california-southern/lawyer/Eileen-Chun-Fruto/e5bf6f7

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Eileen Chun-Fruto

Expertise

I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).

Experience

I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Organizations
Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

Education/Credentials
J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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