Please note that articles are NOT legal advice as there is no Attorney-Client Relationship established between yourself and Wright Muir, P.A. Please also note that the information below is subject to possible change in the immediate future pending changes in law, regulations, and USCIS procedures.
Information pertaining to filing the I-90 form for a replacement card, traveling after filing your I-90, and maintaining lawful permanent residence (avoiding abandonment):
All prior versions of the green card (Forms I-151, AR-3, and AR-103) expired on March 20, 1996. Holders of old green cards are not stripped of permanent resident status, but the expiration does affect the use of the prior versions as travel documents, to establish employment eligibility, to petition for permanent residence for a relative, and to apply for naturalization.
Holders of the old version of the green card may file a Form I-90 to obtain the new version of the green card.
• the application must be accompanied $290 filing fee as well as the required $80 biometrics fee
• the old card must be submitted at the biometrics appointment
The I-90 must be filed at the Los Angeles lockbox. Remember that I-90 applications may also be filed electronically. Ports of entry will also accept I-90 applications from persons reentering the U.S. in possession of an old edition of the green card. If the applicant's place of residence is outside the United States and there is no USCIS office in that foreign country, the application may be filed by the applicant at the U.S. consulate with jurisdiction over his or her place of residence. The application will be processed in the same manner.
If you need to travel to the United States (as of now subject to possible changes in the immediate future) you can enter the United States if you have your current alien resident card and the receipt for the filing of your I-90 application (the receipt will include the amount you paid and the date the application was received). If it has been a more than one year since you entered the US, then you will not be allowed entry and you will need to apply for a Special Immigrant Visa with the U.S. Consulate in your country.
Maintaining lawful permanent resident status:
You want to be sure to avoid the abandonment of your permanent residence. Permanent resident status is not automatically lost by a lengthy absence abroad, but an extended absence is one factor that is taken into account by the Immigration Service in judging the alien's intentions. The key factor is the alien's intentions, but a mere statement of intent to remain a U.S. resident is not controlling; rather, the Immigration Service will look at objective facts that indicate the alien's intent. The major factors that are analyzed in determining the alien's intent include:
• the length of the alien's absence
• the purpose for the alien's departure
• the existence of facts indicating a fixed termination date for the stay abroad
• the continued filing of U.S. tax returns as a resident of the U.S.
• the maintenance of other ties with the U.S., such as ownership of property, bank accounts, credit cards, driver's license
• the location of the alien's close family members
• the location and nature of the alien's employment, e.g., U.S. v. foreign employer, permanent v. temporary employment abroad, fixed-term employment contract, etc.
One factor has no bearing on the alien's retention of lawful permanent resident status: A return trip to the U.S. once a year for several weeks. Some permanent residents hold the mistaken belief that they can simply return to the U.S. once a year for several weeks in order to continue to be considered permanent residents. Their confusion is based on the rule that an alien must return to the U.S. within one year of departure in order to use his or her green card as a reentry document, as opposed to needing some additional documentation such as a reentry permit or a special immigrant visa. Merely returning to the U.S. and using the green card once a year, however, has no bearing on the separate question regarding whether the alien has maintained the intention to remain a U.S. permanent resident. Many aliens have lost resident status because, apart from returning to the U.S. once a year,
they did not maintain sufficient ties with the U.S. to indicate that they considered the U.S. their permanent home.
The alien who will be abroad for a considerable period of time must take certain steps to assure that permanent resident status will not be lost. In all cases, the alien must continue to file U.S. tax returns as a resident. This rule does not necessarily mean that the alien must actually pay U.S. income taxes if he or she is employed abroad, since tax treaties and foreign tax credits may minimize the amount of tax that actually has to be paid. Even so, the alien must file a resident tax return and claim his or her worldwide income on the return, even if he or she can exempt most of this income from taxation. Failure to follow this rule is quite likely to lead to a loss of permanent resident status.
Other important steps include:
• The maintenance of a U.S. address, even if it is at the home of a friend or relative. Even better is the continued ownership of U.S. property. For example, a person assigned abroad may want to rent, rather than sell, his or her U.S . residence.
• If the alien is assigned abroad by a U.S. employer, a written statement should be obtained from the employer specifying the terms and length of the assignment. The statement, if possible, should include a statement that the alien will be reassigned to the U.S. upon completion of the foreign assignment.
• If the alien is undertaking employment abroad for a foreign employer on a special project or temporary assignment, he or she
should obtain an employment contract or written statement specifying the terms and length of employment. If the employment will lead to a transfer back to the U.S. to a U.S.-based affiliate of the foreign employer, the contract or statement should include this fact. If the employment is essentially indefinite, and no contract or statement can be obtained, the alien should be especially careful to maintain as many of the other ties to the U.S. as is possible.
• The alien should leave open and continue to use U.S . bank accounts. For example, some employers, when assigning an alien overseas, will continue to pay the alien in U.S. dollars, depositing the amount directly into the alien's U.S. account. Likewise, U.S. credit accounts should be maintained, and the alien should continue to renew his or her U.S. driver's license.
• If the alien is not employed by a U.S. employer and all family members are abroad, he or she must be able to document a good reason to be out of the U.S. for a prolonged period, particularly if he or she has not yet established such ties as property ownership and financial transactions in the U.S. This situation sometimes arises when, soon after becoming a resident and before actually establishing firm roots in this country, the alien is called upon to take care of family business abroad, such as liquidating personal assets, administering the estate of a deceased relative, or caring for a sick family member. While these reasons for a lengthy absence can be accepted as legitimate, they should be well documented.
