<div itemscope itemtype=”http://schema.org/Article”>
<h3 itemprop=”name”>
<!–ARTICLE TITLE START–>
Need to Plan Ahead Before Sponsoring a Senior Parent for a Green Card
<!–END ARTICLE TITLE–>
</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/arti…-cyrus-d-mehta.#bio”>
<span itemprop=”author” itemscope itemtype=”http://schema.org/Person”>
<span itemprop=”name”>
<!–AUTHOR NAME START–>
Cyrus Mehta
<!–END AUTHOR NAME–>
</span></span>
</a></i></h4><br/>
<span itemprop=”articleBody”>
<p>
Many US citizens, especially those who have recently naturalized, desire to
sponsor their senior parents for lawful permanent residence, also
colloquially known as the green card. A US citizen can
<a
href=”https://my.uscis.gov/exploremyoptions/us_petition_for_immediate_relative”
>
sponsor
</a>
a parent for a green card as an immediate relative by filing Form I-130
under INA 201(b)(2)(A)(i). Immediate relatives are not subject to quotas
that can take many years to clear, and thus the process can be completed
within a relatively short period of time. Bringing a parent over to join
the US citizen and their family permanently in this country can be a great
source of joy and has lots of benefits. In addition to living in close
proximity and enjoying emotional bonds, senior parents can be of great help
in providing child care thus allowing their US citizen children to work and
pursue careers. Some senior parents may have health issues, and having them
nearby gives a sense of security in case of emergencies. Other parents can
also pursue new careers or hobbies once they immigrate to the US.
</p>
<p>
Many parents may already have multiple entry visitor visas, or be able to
travel on visa waivers, and visit their children once a year or even more
frequently. These parents who already have access to the US through visitor
visas need to carefully consider whether it is prudent to obtain lawful
permanent residency or continue to travel as visitors. It is generally not
advisable to use the green card as a tourist visa. A green card holder is
required to reside in the US permanently. While travelling once a year on a
green card is theoretically permissible, there will come a point in time
when the Customs and Border Protection (CBP) officer at a port of entry
will question why the green card holder is not permanently residing in the
US. The CBP official routinely asks a returning resident how long they have
been outside the US since their last departure from the US. If the CBP
official determines that the parent has abandoned permanent residence, they
could be charged with inadmissibility and placed in removal proceeding.
Although the burden of proof is on the government to establish through
<a
href=”https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3731.pdf”
>
clear and convincing evidence
</a>
that the permanent resident has abandoned that status, this burden may be
easy to establish if the parent uses the green card to infrequently visit
the US rather than reside in the US.
</p>
<p>
In order to stave off a finding of abandonment, a green card holder must
demonstrate that the trip abroad was temporary. Returning back to the US
annually may not meet the definition of a temporary trip abroad. Many are
under the misimpression that returning to the US within six months would
eliminate a finding of abandonment. While a permanent resident is only
regarded as seeking admission if the trip abroad has been in excess of 180
days under INA 101(a)(13)(C)(ii), the CBP official can still find
abandonment even if the resident departed the US for less than 180 days
under 101(a)(13)(C)(i). In any event, in order for the green card to be
valid, the resident must return to the US within one year of the prior
departure pursuant to 8 CFR 211.1(a)(2).
</p>
<p>
The term “temporary visit abroad” has been subject to interpretation by a
few Circuit Courts. The Ninth Circuit’s interpretation in
<a
href=”https://scholar.google.com/scholar_case?case=10409397247150364751&hl=en&as_sdt=6&as_vis=1&oi=scholarr”
>
Singh v. Reno
</a>
, 113 F.3d 1512 (9th Cir. 1997) is generally followed:
</p>
<p>
A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short
period, fixed by some early event; or (b) the trip will terminate upon the
occurrence of an event that has a reasonable possibility of occurring
within a relatively short period of time. If as in (b) the length of the
visit is contingent upon the occurrence of an event and is not fixed in
time and if the event does not occur within a relatively short period of
time, the visit will be considered a “temporary visit abroad” only if the
alien has a continuous, uninterrupted intention to return to the United
States during the visit<em>.</em>
</p>
<p>
Since the a trip abroad must be of finite duration, or at must terminate
upon the occurrence of an event likely to occur within a short period of
time, many parents who use the green card as a tourist visa frequently face
intrusive inspections by CBP officers at ports of entry. Many are warned to
apply for a
<a
href=”https://www.uscis.gov/sites/default/files/USCIS/Resources/B5en.pdf”
>
reentry permit
</a>
if they continue to infrequently return to the US. INA § 223 provides the
authority to the Department of Homeland Security to issue a reentry permit
for a period not more than two years. See also 8 CFR 8 CFR § 223.2(c)(2).
While the reentry permit can serve as an insurance policy against such an
aggressive inspection at a port of entry, this document will not entirely
immunize the parent from a finding of abandonment. While length of time may
not be used against the green card holder with a valid reentry permit in a
finding of abandonment, other activities reflecting abandonment may be
considered.
</p>
<p>
The reentry permit is burdensome to maintain for a senior parent who visits
the US a few weeks each year. <a href=”https://www.uscis.gov/i-131″>Form I-131</a> must be filed only
while the parent is physically present in the US, and then the parent must
wait a few weeks for the biometrics appointment. If the parent is unable to
wait for the biometrics appointment after the filing of the application for
the reentry permit, they must return to the US for the biometrics and again
risk an aggressive inspection by a CBP official, although the risk may be
lessened if it is clear that the parent is returning to pursue a reentry
permit.
</p>
<p>
There are also important tax considerations. Failure to file a resident tax
return upon becoming a green card holder, or filing as a nonresident, can
have an adverse impact on not just the parent’s green card status but also
with respect to the ability to naturalize in the future. See 8 CFR
316.5(c)(2). A green card holder is considered a resident for tax purposes
as he or she meets the “
<a
href=”https://www.irs.gov/individuals/international-taxpayers/the-green-card-test-and-the-substantial-presence-test”
>
green card test
</a>
” or the “substantial presence test.” Even if the parent does not earn any
income in the United States, but has earnings from overseas sources, the
parent is generally required to report their worldwide income on a Form
1040 resident US tax return. Moreover, all foreign financial accounts with
a value in
<a
href=”https://www.irs.gov/businesses/small-businesses-self-employed/report-of-foreign-bank-and-financial-accounts-fbar”
>
excess of $10,000 must be reported every year
</a>
. It behooves a parent in this situation to consult with a tax advisor to
ensure that they are not taxed in both countries.
</p>
<p>
There are many other important considerations. The parent will have to
adapt to a completely different lifestyle in the US. For instance, in order
to be able to get around, being able to drive in many parts of the US
outside major metropolitan areas is essential. There is also no free health
insurance for a newly minted green card holder. The parent will have to
purchase private health insurance, and can do so on a
<a href=”https://www.healthcare.gov/immigrants/coverage/”>
health exchange under the Affordable Care Act
</a>
, and there might be subsidies available based on income. As of January 1,
2019, it is no longer mandatory for a lawful permanent resident to have
health insurance under the ACA as there is no longer any tax penalty for
failure to do so. Green card holders have to wait for 5 years before they
become
<a
href=”https://www.visitorscoverage.com/green-card-insurance/medicare-for-green-card/”
>
becomes eligible for Medicare
</a>
. The parent must be 65 or older and must have worked for 40 quarters. Most
new green card holders would not have worked 40 quarters, and they may buy
in to Medicare after they become eligible. The rules regarding Medicaid for
low income green card holders are complex and confusing, and depend on a
person’s income, age and the rules of each state. The sponsor’s income on
the affidavit of support may also be deemed to the parent’s income. Further
information is available
<a
href=”https://www.healthcare.gov/immigrants/lawfully-present-immigrants/”
>
here
</a>
.
</p>
<p>
All of these factors have to be carefully considered before a parent
obtains a green card. Is the parent willing to live in the US permanently
and uproot oneself after living a lifetime in the home country? If not, is
the parent still prepared to reside in the US at some point in the near
future after settling affairs at home, and most likely apply for a reentry
permit in the meantime and then maintain it? Is the parent prepared to file
US tax returns and declare foreign bank accounts each year? Has the
parent’s health needs been taken into account? If the parent is not ready,
it may still be preferable for the parent to continue visiting the US as a
tourist each year. Of course, if the parent was refused a tourist visa in
the past, then being sponsored for a green card makes more sense. There is
also now a growing sense of urgency to sponsor a parent sooner than later
in light of the rhetoric from President Trump to abolish chain migration,
which includes the ability of naturalized citizens to sponsor parents.
However, for that to happen, Congress will need to change the law and that
is not likely to happen anytime soon in a highly polarized Congress. What
is more imminent is a
<a href=”https://www.ilrc.org/public-charge”>
proposed rule that will change the definition of who is likely to
become a public charge
</a>
under INA § 212(a)(4), which might create more obstacles for senior parents
to qualify for the green card. Already, the State Department has
<a
href=”http://blog.cyrusmehta.com/2018/05/state-departments-change-to-public-charge-guidance-in-foreign-affiars-manual-will-result-in-many-more-visa-refusals.html”
>
amended the Foreign Affairs Manual
</a>
to give consular officers more discretion in making public charge
determinations notwithstanding the submission of a Form I-864 affidavit of
support.
</p>
<p>
When everything is considered and an informed decision is made, maintaining
the green card will be smoother and not so burdensome. After five years
from the issuance of the green card, the parent will be able to
<a
href=”https://www.uscis.gov/citizenship/educators/naturalization-information”
>
apply for US citizenship
</a>
provided they have been physically present for half the time in the five
years preceding the filing of the naturalization application and they have
also been continuously residing during this period. Upon being naturalized,
a US citizen is no longer subject to residency requirements. If on the
other hand, the parent has a change of heart and does not wish to be a
permanent resident of the US, it is best that the parent formally abandon
that status by filing <a href=”https://www.uscis.gov/i-407″>Form I-407</a>,
otherwise IRS will still consider the parent a resident alien for tax
purposes.
</p>
<br/>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
</h4>
<!–AUTHOR BIO START–>
<p>
<b> Cyrus Mehta</b> Cyrus D. Mehta is the Founder and Managing Partner of Cyrus D. Mehta & Partners PLLC. He is a prolific speaker and writer on contemporary immigration topics. He graduated with law degrees from Cambridge University and Columbia Law School.
</p>
<!–END AUTHOR BIO–>
<p><hr/>
<div class=”ilwFinePrint”>The opinions expressed in this article do not necessarily reflect the opinion of <span itemprop=”publisher” itemscope itemtype=”http://schema.org/Organization”>
<span itemprop=”name”>ILW.COM</span></span>.</div></p>
</div>
{$inline_image
