Keeping Permanent Residency Status

By Kathleen Lord-Black,  U.S. Immigration Lawyer


Persons who obtain their green cards while in the United States do not need to do any additional paperwork to obtain permanent residency. However, those who successfully complete an application for permanent residence at a U.S. consulate abroad (i.e., “consular process” abroad) do not obtain a green card immediately. These people are issued an immigrant visa at the consulate, not a green card. The immigrant visa must be used within six months to enter the U.S. Once the person enters the U.S., he/she can then claim the green card. If those who “consular process” do not act in time, the immigrant visa will expire and the right to a green card will be lost.

Once you receive a green card, you must “maintain” it by being careful not to commit any crimes that may lead to deportation or bar you from returning to the U.S. should you travel abroad. Also, you should not abandon the U.S. as your permanent residence. “Residence” for immigration purposes refers to where you intend to make your home at the time you depart the U.S. When you leave the U.S., if you do not plan to make your home somewhere outside of the U.S., then you are still considered a U.S. resident. Sometimes, however, Immigration will try to determine what your intentions were by looking at the things you did and said at the time you departed the U.S. For instance, if you stay outside the U.S. for more than a year, and do not obtain a reentry permit before leaving the U.S., Immigration will probably decide that you have abandoned your green card.

In general, anyone who tries to enter the U.S. as a permanent resident must either have a visa or a visa substitute, such as a green card. If you are away longer than a year, you may not be able to use your green card to get back in. Even if you do return before one year, you may be subject to “deferred inspection”. Deferred inspection is a requirement that you check in with the Immigration Office closest to your home in the U.S., so that Immigration can decide whether or not you have given up your green card. It is best to come back to the U.S. within six months in order to avoid this procedure.

Even if you entered the U.S. at least once a year, you may lose your green card. The rule is, do not leave the U.S. at any time with the intention of making some other country your permanent home. If you do, and Immigration has access to evidence that your intent was to make your home in another country, you will lose your green card.

Intent is the key, not time away from the country. As such, remaining outside the U.S. for more than one year does not mean you have automatically given up your green card. If your absence was intended from the start to be only temporary, be sure to take documents and other proof with you on your trip that show you have strong ties to the U.S.. Be sure to meet with an experienced immigration attorney before you leave the U.S. in order to determine which documents and proof you will need, and for assistance in obtaining a reentry permit, if necessary.

Reentry permits are for people who hold green cards and who will stay outside the U.S. for more than one year. With a reentry permit, Immigration will allow a green card holder to stay away from the U.S. for up to two years. The reentry permit is applied for before leaving the U.S. It cannot be renewed and must be applied for while the green card holder is still inside the U.S.

If you stay outside the U.S. for more than one year, you must apply to a U.S. consulate abroad for a special immigrant visa as a returning resident, if you do not have a reentry permit. To get the special immigrant visa, you must prove to the consular officer that your absence from the U.S. has been temporary and you never planned to abandon your U.S. residence. You must have a very good reason for failing to return to the U.S. within one year, and must document this reason very thoroughly, or you will lose your green card.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association, the American Chamber of Commerce in Vancouver, and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

Steps in Consular Processing

By Kathleen Lord-Black,  U.S. Immigration Lawyer


When the relative of a U.S. citizen or lawful permanent resident is overseas, or is otherwise unable to apply for lawful permanent residency (i.e., the “green card”) while in the U.S., the application process must be completed overseas at a U.S. consulate. Sometimes consular processing is a more strategically sound option, and there are times when it is more convenient to apply for permanent residency at a U.S. consulate. In general, however, applying for permanent residency while in the United States (a process termed “adjustment of status”) is preferable because the Immigration Service (USCIS) has customer service centers as well as appeals procedures in place in case the application is denied. This article discusses the steps in processing a spousal petition at an American embassy or consulate overseas.

Step One: File an I-130

The application process begins the same as it does with cases in which the foreign spouse is in the U.S. The U.S. citizen spouse begins the application process by filing an I-130 Petition for Alien Relative, where the petitioner must show good faith marriage.

Step Two: National Visa Center

If the I-130 is approved by USCIS, it is forwarded to the National Visa Center. The National Visa Center will send bills for processing fees, which require advance payment for the applications at the consulate that had been designated by the petitioner in the previously-filed I-130 form.

Once the fee bills are received, the National Visa Center will send instructions for completing the documents needed for the consulate appointment.

Step Three: Form DS-230 Application for Immigrant Visa

The DS-230 is an application to receive an immigrant visa. This is the Consulate's version of the I-485 Application for Permanent Residency, and has many of the same requirements. Like the I-485, the foreign spouse is trying to demonstrate that he or she is admissible to the United States.

Step Four: Form I-864 Affidavit of Support

The U.S. citizen spouse must be able to show that he or she can properly support his/her family in the United States. Usually copies of the sponsoring spouse’s most recent income tax return is submitted, along with proof of U.S. citizenship and proof of current employment.

Step Five: The Consular Appointment

The foreign spouse will be scheduled for an interview at the U.S. Consulate in the foreign spouse's country of origin. The consular officer will be looking again at the issue of good faith marriage, as well as whether the foreign spouse is inadmissible for any reason. Visa interviews are, for the most part, conducted by young junior officers at the start of a five-year probationary period, working long hours under stressful and sometimes erratic schedules. At many posts, these junior officers interview dozens if not hundreds of foreign spouses every day. Therefore, it is essential to have all documentation complete, labeled, and organized by index tabs for quick and easy reference.

The foreign spouse must also undergo a medical exam and receive local police clearance before the interview. It is important that the foreign spouse be aware that any statements made during the interview may be used against him/her during the application process. For instance, an admission of past drug use can be used as a basis for inadmissibility. Therefore, it is important to consult an experienced immigration attorney before filing the I-130 and to thoroughly examine any possible grounds of inadmissibility that may prevent the foreign spouse from obtaining a visa.

When the foreign spouse has never illegally entered the United States nor overstayed a visa, then if the application is approved, and the foreign spouse will receive a nonimmigrant visa. This visa allows the foreign spouse to enter the United States legally. If the visa is only a conditional (temporary) visa, then a permanent immigrant visa must be applied for after the foreign spouse enters the U.S.

In cases where the foreign spouse enters the U.S. with a permanent immigrant visa, this is the beginning of the immigrant's permanent residency. At that point, USCIS will have been alerted by the consulate to begin processing the green card for the foreign spouse.

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About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com