Admission Issues at the U.S. Border

Nov 21, 2010 News

U.S. Immigration TALK

Based on the overwhelming response to last week’s article entitled “Travel Limitations For U.S. Citizens And Green Card Holders” this article will answer questions from readers and further clarify the admission process for lawful permanent residents (or green card holders).
When a lawful permanent resident is returning to the United States from a visit abroad, s/he is required to “apply for admission” by presenting a valid passport and lawful permanent resident card (green card) to the U.S. Custom and Border Protection Officer.
A visitor presenting a tourist visa (B-1/B-2) or any other non-immigrant visa is also required to “apply for admission” by presenting a valid visa and a valid passport. In both cases, it is at the discretion of the U.S. Custom and Border Protection Officer to decide whether he will allow entry by the lawful permanent resident or visitor. Again, the mere possession of an entry document does not guarantee admission to the United States.
Under the Immigration and Nationality Act (INA), the U.S. immigration laws, the Officer can apply section 212 entitled “General classes of aliens ineligible to receive visas and ineligible for admission” to deny entry to a lawful permanent resident or visitor.

Gail S. Seeram, LL.M, J.D., BBA

If the U.S. Custom and Border Protection Officer denies entry to a visitor, s/he will be required to board a plane back to his or her native country. In the case of a lawful permanent resident, if the U.S. Custom and Border Protection Officer finds the lawful permanent resident inadmissible under section 212 of the INA, then the Officer will confiscate the lawful permanent resident card (green card) and issue a parole document, temporarily allowing the lawful permanent resident into the U.S. with the condition of him/her reporting to a U.S. Custom and Border Protection Office for further inspection or appear in Immigration Court for removal or deportation proceedings.
My officer has represented many residents and visitors placed in these types of proceedings.
It is important for lawful permanent residents (or green card holders) to understand that merely returning to the U.S. once a year for a few days or even very often does not “automatically revalidate” a green card where the lawful permanent resident actually resides abroad. The U.S. Custom and Border Protection Officer can independently determine that the lawful permanent resident status has been abandoned based on evidence obtained during questioning at the border.
Reader Question #1: I am a green card holder but I spend most of my time in Guyana because I have a business. I return to the United States every three months for a week and then return to Guyana. Can U.S. immigration take away my green card?
Attorney Answer #1: As stated above, it is at the discretion of the Officer to decide whether you have abandoned your lawful permanent resident status in the U.S. If the Officer makes this determination, you will be paroled into the U.S. but will have to either appear at the U.S. Custom & Border Protection Office or appear in Immigration Court to prove to a Judge that you have not relinquished your residency in the U.S.
Reader Question #2: What types of evidence will the Officer and Judge exam to determine whether I have abandoned my residency?
Attorney Answer #2: The Officer and Judge will look to see if you own or lease a home in the U.S., have employment in the U.S., filed tax returns in the U.S., children attend school in the U.S., and how many days you were physically present in the U.S. You will be required to prove your strong physical ties to the U.S. and that you have not abandoned your residency.
Most of the readers understand that any absence by a lawful permanent resident for more than one year from the United States will result in automatic termination of status by law. However, lawful permanent residents need to understand that any absences for less than a year may also result in termination of status if it is determined that residency has been abandoned because the person lives and works abroad but visits the U.S. every year.
See the following case law: Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997), Alvarez v. District Director, 539 F.2d 1220 (9th Cir. 1976).
Note: These are not new laws or regulations. The only difference with the procedures now verses five or ten years ago is that U.S. Department of Homeland Security has tightened enforcement at the border and has rolled out databases that capture more information on its visitors, residents and citizens.
The solution for lawful permanent residents is to apply for U.S. citizenship because U.S. citizens can live and work abroad for an unlimited amount of time, are not subject to travel limitations or restrictions and are not subject to the inadmissibility rules in section 212 of the INA.
Gail S. Seeram, LL.M, J.D., BBA, is a U.S. Immigration Attorney that handles cases involving family petitions, marriage-based petitions, business/investor visas, citizenship, international adoption, deportation, asylum, work authorization and extension of status. Call her office at 407-292-7730, email questions to [email protected], visit her website at www.Go2Lawyer.com or connect on facebook at www.facebook.com/Go2Lawyer.