advising lprs on foreign travel
Post on 22-Jan-2018
536 Views
Preview:
TRANSCRIPT
Greg McLawsenNomadic Immigration Lawyer
Sound Immigration
@mclawsen
greg@soundimmigration.com
www.soundimmigration.com
w w w . s o u n d i m m i g r a t i o n . c o m
www.soundimmigration.com
America’s web-based
immigration law firm
page 3
w w w . s o u n d i m m i g r a t i o n . c o m
www.soundimmigration.com/events
page 4
w w w . s o u n d i m m i g r a t i o n . c o m
A new (maybe, haven’t decided) project.
page 5
w w w . s o u n d i m m i g r a t i o n . c o m page 6
Continuity of residence for naturalization1
Abandonment of residency2
Understanding reentry permits3
What do we tell our clients?4
w w w . s o u n d i m m i g r a t i o n . c o m
“Well, it depends.”
…sometimes. And
other times we just
need to be more
precise.
page 7
Continual residence.
For purposes of naturalization.
w w w . s o u n d i m m i g r a t i o n . c o m
These are different concepts!
“Continual residence”
~ For naturalization.
~ Strict statutory
requirements.
~ Black letter law with firm
dates.
~ Subjective intent is
irrelevant.
Abandonment
~ Loss of LPR status.
~ Funky caselaw.
~ Some black letter law, some
firm dates.
~ Subjective intent is
sometimes important.
page 9
w w w . s o u n d i m m i g r a t i o n . c o m
Meet N-400 applicant, Kira.
• Husband works for U.S.
government.
• Maintains house in Texas, pays
taxes, current driver’s license.
• Over 13 years as LPR.
• 14-months in Iran while husband
worked there on official trip.
• Files N-400 after return.
Can she natz?
page 10
No!
w w w . s o u n d i m m i g r a t i o n . c o m
CR in USCIS service
district for 3 months
prior to filing
5 (or 3) years CR
immediately prior to
filing N-400
Maintain CR
between N-400
filing and citizenship
oath
Continual residency and naturalization.
page 12
“Related” but
different from
physical presence
requirement.
Physical presence
required for at least
50% of required
continuous residence
period.
w w w . s o u n d i m m i g r a t i o n . c o m
Continual residence rules are black and white!
Time abroad matters.
Subjective intent does not.
page 14
w w w . s o u n d i m m i g r a t i o n . c o m
6 months -> 1 yr.
Presumptive break.
Under 6 months.
No break in CR.
1 year plus.
You’re screwed.
Consequences of single trips abroad.
page 15
w w w . s o u n d i m m i g r a t i o n . c o m
Rebutting presumptive break (6 mo -> 1 yr trip)
Evidence that CR wasn’t
broken:
• Continued employment.
• Immediate family in U.S.
• “Full access” to U.S.
“abode.”
• No employment abroad.
page 16
w w w . s o u n d i m m i g r a t i o n . c o m
There are no exceptions with a trip of 1 yr plus!
page 17
w w w . s o u n d i m m i g r a t i o n . c o m
…unless
Qualifying government
employment abroad
~ and ~
Filed N-470 before you
left
page 18
w w w . s o u n d i m m i g r a t i o n . c o m
Advising your client.
Ensure they
understand the
black letter rules on
continual residence.
page 19
LPR abandonment.
Losing LPR status through trips abroad.
What
happens at
the airport?
w w w . s o u n d i m m i g r a t i o n . c o m
Not just a matter of timing.
The clients’ activities matter.
page 22
w w w . s o u n d i m m i g r a t i o n . c o m
Fleuti doctrine & UNA 101(a)(13)(C)
Normally, returning
LPRs are not “seeking
admission.” Unless…
~ has abandoned or relinquished
LPR status;
~ absent from the U.S. for
continuous period of 180 days or
longer;
~ has engaged in illegal activity after
having departed the United States,
~ left U.S. after NTA;
~ certain criminal offenses; or
~ attempts to EWI.
page 23
w w w . s o u n d i m m i g r a t i o n . c o m
History of
prolonged
absences
Divorce or
separation from
petitioning spouse
Arrival on charter
flight w/ non-
residence.
What catches CBP’s attention?
Employment
abroad
Location of family
members
Payment of taxes
page 24
Primary
question for
CBP:
“Where is
this person
actually
living?”
Never
required to
sign.
If CBP believes
there has been
abandonment,
next step is NTA.
If respondent makes
colorable claim
to LPR status,
government has
burden of “clear,
unequivocal,
and convincing
evidence” that the
status has been
changed or
abandoned
w w w . s o u n d i m m i g r a t i o n . c o m
Legal standard
[If not] Was there a continuous,
uninterrupted intention to return to the
United States visit?
Was the absence more than a
“temporary visit abroad?
page 29
w w w . s o u n d i m m i g r a t i o n . c o m
Actions showing intent to return.
Factors similar to those
discussed already:
• Family ties;
• Property holdings; and
• Business affiliations
within the United States.
page 30
Reentry permits.
Preventing LPR abandonment in the first place.
Authorizes
foreign
travel for up
to two
years.
w w w . s o u n d i m m i g r a t i o n . c o m
Prevents LPR abandonment.
So long as the LPR remains not
otherwise inadmissible, she does
not abandon LPR status while
traveling abroad on a valid
reentry permit
page 33
Apply with
the familiar
Form I-131
w w w . s o u n d i m m i g r a t i o n . c o m
“Forget” to apply for a reentry permit?
Can apply for a “returning
resident” visa.
page 35
What do we tell our clients?
Key points to communicate.
w w w . s o u n d i m m i g r a t i o n . c o m
Track your travel.
• Spreadsheet with
travel dates.
• Proof of travel.
page 37
w w w . s o u n d i m m i g r a t i o n . c o m
Bring documentation.
• Ties to U.S.
• Rent, utilities.
• Lease.
• License.
• Employment letter.
• Purpose of foreign
visit.
• Store it in the cloud?
page 38
w w w . s o u n d i m m i g r a t i o n . c o m
Electronic devices.
• Secure it;
• Wipe it; or
• Don’t bring it.
page 39
w w w . s o u n d i m m i g r a t i o n . c o m
No right to counsel!
Greg Boos, Margaret Stock and
Heather Fathali, Across the Line,
Advocacy at U.S. Ports of Entry
(Feb. 15, 2016), available at
https://www.soundimmigration.
com/across-line-advocacy-u-s-
ports-entry/.
page 40
w w w . s o u n d i m m i g r a t i o n . c o m
Should LPRs travel at all?
There is some risk…
but how much?
page 41
Anyone have a tip to share?
greg@soundimmigration.com with
ideas for future webinars)
top related