[usa_andy]

hallo alle,

bin kurz vor dem interview in frankfurt und denke das ich meine
gc bald habe (hoffentlich). war bis juni 2004 bereits fuer 6.5 jahre
in den usa musste aber beruflich bedingt zurueck nach deutschland.
ich habe allerdings nun die befuerchtung das es schwieriger ist die gc
zu behalten als zu bekommen.....

meine firma kann leider keine aussage machen, wann ich wieder
zur niederlassung in den usa gehen darf.
nun habe ich gehoert
es gaebe eine formalitaet die man einreichen kann, die das
behalten der cg erlaubt, auch wenn man nicht in den usa lebt
(auch ueber einen laengeren zeitraum nicht).
das ding soll sich im volksmund "sailing slip" nennen.
kann das jemand bestaetigen, dass es diesen formalismus gibt ???

ich habe leider auch die befuerchtung das ich dieses jahr garnicht in
die usa einreisen kann. gibt es irgendwelche bedingungen
die man zum erhalt der gc einhalten muss ???
ich habe mal was gehoert, dass man spaetestens nach 6 monaten
nach erhalt eingereist sein muss (auch wenn nur fuer eine kurze zeit).
ist das so ???
wer hat infos ??

vielen dank im voraus
gruss

[Ulrich-TX]

Ein Memo, dass ich letztes Jahr von meinem Anwalt bekommen habe:

Retention of U.S. Residency

Because so many people misunderstand the nature of U.S. lawful permanent residency, it is first necessary to explain a few things about how to maintain lawful permanent resident status. Unfortunately, many aliens who get lawful permanent resident ("LPR" or "green card") status in the United States believe that they need only briefly visit the United States once annually to maintain this status. This belief is incorrect and will result in lawful permanent residence being summarily taken away ‑ usually at the worst possible time. Lawful permanent residents of the United States, observing the way that immigrants in their own countries are treated, often wrongly assume that they are subject to the same or similar rules. This problem is exacerbated by the confusion that results from their frequent assumption that they may remain outside the United States as long as their reentry documents remain valid. Because the United States applies standards that are unique among the world’s immigration laws, there are two distinct "rules" that we must consider in analyzing problems relating to abandonment of LPR status: the "rule of documentation" and the "rule of abandonment."

"Rule of Documentation"

All aliens who enter the United States are required to identify themselves as non‑citizens when they enter and register with the Attorney General as aliens. They are then given proof that they have registered, which they are thereafter required to carry with them while in the U.S. For a nonimmigrant alien, this proof is generally a USCIS form I‑94 (nonimmigrant alien arrival/departure record). This form shows the date, place, method of entry, and authorized length of stay for an alien visitor who has been allowed entry of less than permanent or indefinite duration. A valid, unexpired form I‑94 may be used as a reentry document after visits of thirty days or less to Canada, Mexico, and "adjacent islands" only. This is true when the alien's nonimmigrant visa has expired, or his or her nonimmigrant status changed from one classification to another after entry.

Immigrants are given form I‑551 "Alien Registration Receipt Card," which is popularly known as a "green card." This is a laminated, forgery resistant identification card that was designed for long‑term use by lawful permanent resident aliens. This document is to an immigrant what a form I‑94 is to a nonimmigrant: evidence of alien registration and admission. Just as a nonimmigrant alien may use his or her form I‑94 as a reentry document (for limited trips abroad of up to thirty days), an LPR may use his or her "green card" as a reentry document for visits abroad of less than one year's duration. If an LPR also has a "reentry permit," then it and the "green card" together may be used as necessary reentry documentation for visits abroad of less than two years duration.

If an LPR has remained outside the United States for more than one year (or more than two years, with a reentry permit), without abandoning his or her residence, then the LPR may go to the nearest U.S. consular post and apply for a new Immigrant visa. There is a special visa category for returning resident aliens. Applicants in this category do not need to have a relative or employer petition for them, they need only show that they are resident aliens who have not abandoned their status and who have remained outside the U.S. longer than the validity period of their reentry documents.

"Rule of Abandonment"

No resident alien may attempt to enter the United States lawfully without some form of reentry document. Possession of a valid reentry document (such as a "green card") does not, however, guarantee readmission to the United States. The LPR must also show that he or she has not abandoned his or her residence in the United States. Unless both showings are made (valid reentry document and non‑abandonment of residence), the LPR will be denied entry. The law provides that any LPR applying for admission to the United States bears the burden of proving that he or she has not abandoned his or her residence here.

Irrespective of the length of an LPR's absence, if the LPR has abandoned his or her residence in the United States, the alien is no longer entitled to LPR status. "Abandonment" is a term with a special meaning, when used in context. The interpretive case law has seen the development of certain criteria that are used to decide whether abandonment has occurred. These include:

1. What was the purpose of the alien's trip abroad?

2. When the alien departed from the United States, was there a fixed ending date for the visit abroad?

3. What evidence is there of an objective intention to maintain an actual home in the U.S.?

Examining these criteria seriatim:

What was the purpose of the LPR's trip abroad?

Open‑ended trips abroad cause the most difficulty in this area of the law. Applying common sense, it is difficult for an Immigrant Officer to believe that a person who makes his or her actual, permanent home in the United States would leave without any idea of when he or she will return. Ordinarily, people do not behave this way. It is vitally important for an LPR going abroad to record the fact that he or she will return either on a reasonably certain date or upon the occurrence of a specific event. When an LPR goes abroad with a return determined either by a specific, scheduled return, or the occurrence of a specific event, that absence will be less likely to be treated as an abandonment.

An example of a planned return on a reasonably certain date would be a case in which an employee of an international firm is sent abroad to work for a fixed term. Here, both the employer and the employee know before departure that the LPR employee will return at the end of that fixed term. Taking the same facts and making the return contingent upon the completion of a specific project would be an example of a return based upon the occurrence of a specific event.

Objective intention to return to the U.S. as an actual home?

The third criterion is important in the sense that there must be evidence of an objective intention to return to an actual home in the U.S. There are, however, many valid reasons for not having the close ties that one would normally associate with maintenance of an actual residence in the United States. The first two criteria are often the most important factors considered in deciding whether abandonment has occurred. However, when the evidence of the alien's intent, after review of that evidence is inconclusive, then the third criterion is the deciding factor.

Evidence of an objective intention to return to an actual home in the U.S. can include the following:

· Existence of close family ties in the United States.

· Career employment in the United States.

· Continued filing of State and Federal income tax returns while absent.

· Maintenance of credit cards and bank accounts.

· Continued ownership of real property.

· Either maintenance of an actual place of residence or storage of the personal property associated with such a place of residence.

LPR's frequently want to know what specific steps they must take to protect their lawful permanent resident status if they go abroad. If they approach this problem from the perspective that they simply want to find a way to retain their "green cards" while they live abroad, then they are not likely to succeed. Eventually the USCIS will discover that the LPR is living abroad and will place the alien in exclusion proceedings when he or she attempts to reenter the United States.

Those LPR’s who intend to make their homes in the United States, but need to go abroad temporarily, should take the following steps:

1. Make certain to establish objectively the purpose of the trip abroad. If it is business related, ask the employer to place a letter in the LPR's personnel file. If the reason for going abroad is personal, ask a friend or relative abroad to write a detailed letter concerning the reason for the trip. If all else fails, the LPR should write a letter to us in which he or she provides a detailed explanation for the trip and explicitly says that he or she has no intention of abandoning lawful permanent resident status.

2. Before departure, establish the duration of the trip. That is, establish when the LPR will return to the U.S. If the return is contingent upon the occurrence of an event, then establish in advance exactly what must happen. While it is always possible to change things after the trip is underway, the more specific the LPR can be before departure, the better he or she will fare if questioned upon return.

3. A person who intends to return to a home in the U.S. after a trip abroad will have the various objective indicia of that fact (bank and credit card accounts, tax returns, property, etc.). The LPR should record the existence of these facts in a form that will be readily available in the event the USCIS decides to challenge him or her with a charge of abandonment. The LPR also should be prepared to update this information on short notice upon return.

Procedures During and After Entry as an LPR

The USCIS cannot simply turn a lawful permanent resident away at the airport on the basis that they suspect the LPR of having abandoned his or her residence in the U.S. The case law provides that when an alien presents a colorable claim to LPR status at a port of entry, the burden shifts to the USCIS to prove by clear, convincing and unequivocal evidence that the alien has abandoned his or her residence. A colorable claim to LPR status is made by presenting an unexpired green card, together with an assertion that the LPR has not abandoned his or her residence in the U.S. Generally, the USCIS will try to rebut this and meet their burden of proof by a combination of two forms of evidence: the alien's passport and the alien's testimony.

The alien's passport will show the number of trips made outside the United States and the length of those trips. The person who typically comes to the U.S. for one week each year must explain what he or she has been doing abroad the rest of the time. When these cases are typically brought into Immigration Court, it is not simply a matter of one such absence, but rather three or four. When an Immigration Judge sees that an alien has been abroad for all but four of the last 208 weeks, the Judge is likely to conclude that the government has met its burden of proof.

The LPR will usually be asked to sign a statement at the port of entry. These statements are drafted in terms that are most favorable to the government position and the LPR’s are put under considerable pressure to sign them. We always warn our clients against giving any detailed information to USCIS officers or signing any statements. This is similar to the situation where a criminal attorney advises the client not to make any statements to the police without an attorney present. As with clients in that situation, people who believe that they are innocent feel that they have no reason to avoid cooperating with the authorities. Unfortunately, this often leads to people signing inaccurate and incomplete statements. USCIS officers are very often mean and prejudiced people. It is not unusual for them to lie in their testimony. They are not your friends and they are not there to help you.

If an LPR is taken into what is known as secondary inspection, the LPR should refuse to make any further statements, refuse to sign anything, and insist on seeing an attorney. The USCIS will not allow attorneys to represent aliens in entry proceedings. However, if the LPR presents a "green card," and refuses to sign any statements, the USCIS will have no choice but to take the LPR's travel documents and release him or her pending either a "deferred inspection" proceeding at the main USCIS office a few days later, or an exclusion hearing in Immigration Court several weeks or months later. In either case, the LPR will be much better off for not having provided the USCIS with information or a signed statement. If the LPR has sufficient objective evidence to support his or her claim of non‑abandonment, without statements to the contrary, the USCIS must dismiss their charges and return the LPR’s documents.

Special Problems

Intent of a parent imputed to a child

The residence intent of a parent who has custody of a minor child will be imputed to the child. Thus, where a family moves abroad and the parents intended to abandon their LPR status, the children, upon attaining majority, may not subsequently reenter the U.S. as returning residents. The case law holds that the parent's intent will be imputed to the child and the abandonment (and loss of LPR status) is effective immediately.

Extended absences

The fact that an LPR must go abroad for an extended period is not dispositive of the issue of intent. Obviously, with an unusually long absence, the LPR must produce a proportionally greater degree of proof to rebut a claim of abandonment. The administrative case law contains many unusual cases, such as: a merchant seaman who rented a room in San Pedro, California, but was at sea all day a few days each year, and, a student who went to Italy for high school, college and medical school, remaining outside the U.S. for fourteen years. In both cases, the Board of Immigration Appeals held, because of the unique circumstances in each case, that there was no abandonment. When an LPR has a valid, temporary reason for going abroad, he or she may remain outside the United States for an extended period.

Use of a nonimmigrant visa by an LPR to enter the U.S.

Often, an LPR who works for a U.S. firm is sent abroad on a temporary assignment of several years. During this time, though maintaining U.S. residency, the LPR does not return to the U.S. and the "green card" is no longer valid as a reentry document. Here, if the alien needs to return briefly to the U.S. on short notice, it is perfectly proper for the alien to apply for a visitor’s visa (B‑1 or B‑2) for that trip. This practice is explicitly endorsed by the U.S. State Department's Foreign Affairs Manual, Volume 9 ‑ Visas (22 C.F.R.'42.22, Note 1.4). The circumstances under which an LPR may use a nonimmigrant visa are highly limited and this issue must be carefully researched to make certain that it applies before being used, however.

[Ulrich-TX]

Fortsetzung...

Special Problems
Intent of a parent imputed to a child

The residence intent of a parent who has custody of a minor child will be imputed to the child. Thus, where a family moves abroad and the parents intended to abandon their LPR status, the children, upon attaining majority, may not subsequently reenter the U.S. as returning residents. The case law holds that the parent's intent will be imputed to the child and the abandonment (and loss of LPR status) is effective immediately.

Extended absences

The fact that an LPR must go abroad for an extended period is not dispositive of the issue of intent. Obviously, with an unusually long absence, the LPR must produce a proportionally greater degree of proof to rebut a claim of abandonment. The administrative case law contains many unusual cases, such as: a merchant seaman who rented a room in San Pedro, California, but was at sea all day a few days each year, and, a student who went to Italy for high school, college and medical school, remaining outside the U.S. for fourteen years. In both cases, the Board of Immigration Appeals held, because of the unique circumstances in each case, that there was no abandonment. When an LPR has a valid, temporary reason for going abroad, he or she may remain outside the United States for an extended period.

Use of a nonimmigrant visa by an LPR to enter the U.S.

Often, an LPR who works for a U.S. firm is sent abroad on a temporary assignment of several years. During this time, though maintaining U.S. residency, the LPR does not return to the U.S. and the "green card" is no longer valid as a reentry document. Here, if the alien needs to return briefly to the U.S. on short notice, it is perfectly proper for the alien to apply for a visitor’s visa (B‑1 or B‑2) for that trip. This practice is explicitly endorsed by the U.S. State Department's Foreign Affairs Manual, Volume 9 ‑ Visas (22 C.F.R.'42.22, Note 1.4). The circumstances under which an LPR may use a nonimmigrant visa are highly limited and this issue must be carefully researched to make certain that it applies before being used, however.

Special Provisions

Reentry Permits

Generally speaking, any LPR may apply for and receive permission to reside abroad for up to two years, for any reason. This is accomplished through a United States reentry permit. While the LPR is abroad, he or she will be treated as a continuing U.S. resident for all other purposes, including taxation.

Reentry permits are generously granted for first time applicants, but become increasingly more difficult to extend as the LPR remains outside the United States. While it is impossible to quantify the degree of difficulty without a specific set of facts, the approval rate is high for first time applicants, more for the first extension, and still more difficult for subsequent extension applications.

An LPR should apply for a reentry permit before departing from the United States. If the alien goes abroad and then discovers that he or she needs a reentry permit, the alien must return to the U.S. to apply. Besides the application form (I‑131) and fee, the alien will need to present two "green card-style photographs and his or her original form I‑151 or I‑551 "green card." If the I‑551 has not yet been issued, then the LPR may present the temporary I‑551 stamp in his or her passport. This application must be made in the United States, though the LPR may have it sent to the nearest U.S. Consular post abroad for delivery to the alien.

Section 316 of the Immigration and Nationality Act

If the LPR's employer abroad qualifies as “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per cent of whose stock is owned by an American firm or corporation", then it is possible for the LPR to remain outside the U.S. for an extended period. To qualify for this special treatment, all of the following conditions must be met:

1. The LPR must have resided in the U.S. for at least the immediate one year preceding his or her departure; and,

2. The employer abroad must qualify as a U.S. company or subsidiary, as described above; and,

3. The LPR must file form N‑470 before departure; and,

4. The LPR's presence abroad must be for developing trade or commerce, or “necessary to the protection of the property rights in such countries of such firm or corporation."

If an LPR qualifies for the special treatment described in Section 316(b) of the Immigration and Nationality Act, then the LPR will be treated as a continuing resident alien in the United States. This means that the LPR can keep his or her "green card" status while working abroad. In addition, LPR’s who successfully file N‑470 forms are also allowed to continue their residence for naturalization purposes, though they are abroad.

Formal Abandonment of LPR Status

A lawful permanent resident alien may voluntarily abandon his or her LPR status at any time and this act will not prejudice a future application to regain such status. The USCIS considers a loss of LPR status through abandonment (voluntary or otherwise) to be effective, nunc pro tunc, to the date of the actual abandonment. Thus, if an LPR were to move abroad to accept foreign employment in January 1994, and then attempted to enter the U.S. as a returning resident in June 1995, the USCIS would make a finding of abandonment at the time of the attempted entry, and R would be retroactive to January 1994.

The Internal Revenue Service (IRS), on the other hand, considers an LPR to be a continuing tax resident of the United States until that status is either formally abandoned or taken away. If the alien's LPR status is taken away by the USCIS, the IRS considers the alien's residency for tax purposes to cease as of the date the USCIS makes its formal finding. Here, the IRS does not consider the abandonment to be effective nunc pro tunc. Therefore, an alien who abandoned his or her LPR status by moving abroad is still deemed to be a tax resident by the IRS until he or she formally abandons LPR status or has it removed by action of the USCIS. Such a person would be liable for all back taxes owed.

Applicants for naturalization as United States citizens must prove that they have been continuously resident in the United States for a specific period of time (three years for spouses of U.S. citizens and five years for all others). "Continuous residence" for naturalization purposed is broken by any absence of one year or more, unless the LPR is protected by the provisions of section 316.

An alien may abandon LPR status for any reason and at any time. A formal abandonment is effected by completing Immigration Service form I‑407 (Abandonment of Lawful Permanent Resident Status) and signing it in the presence of either a U.S. Consular officer abroad, or an Immigration Service officer at a port of entry. The alien should request a copy of the endorsed form I‑407 for his or her records. When the alien abandons his or her LPR status, the alien will also be asked to surrender his or her "green card" (form I‑151 or I‑551).

Ideally, the applicant should execute the form I‑407 before a U.S. Consular officer abroad while concurrently applying for a B‑1/B‑2 nonimmigrant visitor’s visa. The visitor’s visa will allow the former LPR to visit the United States as a nonimmigrant alien. Applicants for nonimmigrant visas must reveal on their applications if they have previously held LPR status in the United States. Consular officers, who are always alert for evidence of immigrant intent by nonimmigrant visa applicants, have no way of knowing whether this status ended voluntarily or involuntarily. Since these officers generally presume that a former LPR who applies for a nonimmigrant visa is going to use that visa to improperly enter the United States as an immigrant, they tend to refuse visas to these applicants lacking unusually persuasive evidence to the contrary. If, however, the LPR voluntarily abandons his or her status while concurrently applying for a nonimmigrant visa, the Consular officer knows that the abandonment was not made under duress and is generally willing to accept the alien's representation of legitimate nonimmigrant intent at face value.

Under the Kennedy‑Kassebaum Health Portability Insurance Act, a long term permanent resident (has had permanent residence eight out of last fifteen taxable years) is presumed to have renounced permanent residence (by executing an I‑407) for tax avoidance if his or her average net income for the previous five years is greater than $100,000.00 or the person's net worth is $500,000.00 or more.

[Michu]

Es fehlt die Quellenangabe!

Gruss
Michael

[Ulrich-TX]

Memo von meinem (Firmen-)Anwalt. Keine offizielle "Quelle".

[Michu]

Dann kann es auch nicht nachgeprueft werden, denn die offiziellen Bedingungen weichen in einzelnen Faellen dabei ab.

Bitte nur Angaben mit Quellennachweis hier einstellen, vergleiche auch die Forums-Regeln.

Gruss
Michael

[VegasGirl]

Es ist ganz einfach die GC beizubehalten... man braucht dazu nur in den USA zu leben! Was ja schliesslich ueberhaupt erst der Grund fuer eine GC ist, alles andere ist Missbrauch.

[TinaW]

@usa andy,

wieso willst Du eine GC haben, wenn Du eventuell gar nicht in den USA leben willst ?

Und ich betone nicht willst, denn wenn Du wolltest würdest Du Dir schnell einen neuen Job suchen, wenn Dein jetziger Dir nicht die Möglichkeit gibt.