Page 40 - The Indian EYE - 112020

ImmIGRATION NOVEMBER 20, 2020 | The Indian Eye 40

need to Plan ahead Before sponsoring

a senior Parent for a Green Card

Cyrus meHta residency or continue to travel as the trip abroad has been in excess appointment after the filing of the All of these factors have to be
visitors. It is generally not advisable of 180 days under INA 101(a)(13) application for the reentry permit, carefully considered before a parent
any US citizens, especially to use the green card as a tourist (C)(ii), the CBP official can still find they must return to the US for the obtains a green card. Is the parent
those who have recent- visa. A green card holder is required abandonment even if the resident biometrics and again risk an aggres- willing to live in the US permanent-
Mly naturalized, desire to to reside in the US permanently. departed the US for less than 180 sive inspection by a CBP official, al- ly and uproot oneself after living a
sponsor their senior parents for law- While travelling once a year on a days under 101(a)(13)(C)(i). In any though the risk may be lessened if it lifetime in the home country? If not,
ful permanent residence, also collo- green card is theoretically permissi- event, in order for the green card to is clear that the parent is returning is the parent still prepared to reside
quially known as the green card. A ble, there will come a point in time be valid, the resident must return to pursue a reentry permit. in the US at some point in the near
US citizen can sponsor a parent for when the Customs and Border Pro- to the US within one year of the There are also important tax future after settling affairs at home,
a green card as an immediate rela- tection (CBP) officer at a port of en- prior departure pursuant to 8 CFR considerations. Failure to file a res- and most likely apply for a reentry
tive by filing Form I-130 under INA try will question why the green card 211.1(a)(2). ident tax return upon becoming a permit in the meantime and then
201(b)(2)(A)(i). Immediate rela- holder is not permanently residing The term “temporary visit green card holder, or filing as a non- maintain it? Is the parent prepared
tives are not subject to quotas that in the US. The CBP official routine- abroad” has been subject to inter- resident, can have an adverse im- to file US tax returns and declare
can take many years to clear, and ly asks a returning resident how long pretation by a few Circuit Courts. pact on not just the parent’s green foreign bank accounts each year?
thus the process can be complet- they have been outside the US since The Ninth Circuit’s interpretation card status but also with respect to Has the parent’s health needs been
ed within a relatively short period their last departure from the US. If in Singh v. Reno, 113 F.3d 1512 (9th the ability to naturalize in the future. taken into account? If the parent is
of time. Bringing a parent over to the CBP official determines that the Cir. 1997) is generally followed: See 8 CFR 316.5(c)(2). A green not ready, it may still be preferable
join the US citizen and their family parent has abandoned permanent A trip is a ‘temporary visit card holder is considered a resident for the parent to continue visiting
permanently in this country can be residence, they could be charged abroad’ if (a) it is for a relatively for tax purposes as he or she meets the US as a tourist each year. Of
a great source of joy and has lots with inadmissibility and placed in short period, fixed by some early the “green card test” or the “sub- course, if the parent was refused a
of benefits. In addition to living in removal proceeding. Although event; or (b) the trip will terminate stantial presence test.” Even if the tourist visa in the past, then being
close proximity and enjoying emo- the burden of proof is on the gov- upon the occurrence of an event parent does not earn any income in sponsored for a green card makes
tional bonds, senior parents can be ernment to establish through clear that has a reasonable possibility of the United States, but has earnings more sense. There is also now a
of great help in providing child care and convincing evidence that the occurring within a relatively short from overseas sources, the parent growing sense of urgency to sponsor
thus allowing their US citizen chil- permanent resident has abandoned period of time. If as in (b) the length is generally required to report their a parent sooner than later in light of
dren to work and pursue careers. that status, this burden may be easy of the visit is contingent upon the worldwide income on a Form 1040 the rhetoric from President Trump
Some senior parents may have to establish if the parent uses the occurrence of an event and is not resident US tax return. Moreover, to abolish chain migration, which
health issues, and having them near- green card to infrequently visit the fixed in time and if the event does all foreign financial accounts with a includes the ability of naturalized
by gives a sense of security in case of US rather than reside in the US. not occur within a relatively short value in excess of $10,000 must be citizens to sponsor parents. Howev-
emergencies. Other parents can also In order to stave off a finding period of time, the visit will be con- reported every year. It behooves a er, for that to happen, Congress will
pursue new careers or hobbies once of abandonment, a green card hold- sidered a “temporary visit abroad” parent in this situation to consult need to change the law and that is
they immigrate to the US. er must demonstrate that the trip only if the alien has a continuous, with a tax advisor to ensure that they not likely to happen anytime soon in
Many parents may already abroad was temporary. Returning uninterrupted intention to return to are not taxed in both countries. a highly polarized Congress. What
have multiple entry visitor visas, or back to the US annually may not the United States during the visit. There are many other import- is more imminent is a proposed
be able to travel on visa waivers, meet the definition of a temporary Since the a trip abroad must ant considerations. The parent will rule that will change the definition
and visit their children once a year trip abroad. Many are under the be of finite duration, or at must ter- have to adapt to a completely differ- of who is likely to become a pub-
or even more frequently. These misimpression that returning to the minate upon the occurrence of an ent lifestyle in the US. For instance, lic charge under INA § 212(a)(4),
parents who already have access to US within six months would elim- event likely to occur within a short in order to be able to get around, be- which might create more obstacles
the US through visitor visas need inate a finding of abandonment. period of time, many parents who ing able to drive in many parts of the for senior parents to qualify for the
to carefully consider whether it is While a permanent resident is only use the green card as a tourist visa US outside major metropolitan ar- green card. Already, the State De-
prudent to obtain lawful permanent regarded as seeking admission if frequently face intrusive inspections eas is essential. There is also no free partment has amended the Foreign
by CBP officers at ports of entry. health insurance for a newly minted Affairs Manual to give consular offi-
Many are warned to apply for a green card holder. The parent will cers more discretion in making pub-
reentry permit if they continue to have to purchase private health in- lic charge determinations notwith-
infrequently return to the US. INA surance, and can do so on a health standing the submission of a Form
§ 223 provides the authority to the exchange under the Affordable I-864 affidavit of support.
Department of Homeland Security Care Act, and there might be sub- When everything is considered
to issue a reentry permit for a pe- sidies available based on income. and an informed decision is made,
riod not more than two years. See As of January 1, 2019, it is no longer maintaining the green card will be
also 8 CFR 8 CFR § 223.2(c)(2). mandatory for a lawful permanent smoother and not so burdensome.
While the reentry permit can serve resident to have health insurance After five years from the issuance
as an insurance policy against such under the ACA as there is no longer of the green card, the parent will
an aggressive inspection at a port of any tax penalty for failure to do so. be able to apply for US citizenship
entry, this document will not entire- Green card holders have to wait for provided they have been physically
ly immunize the parent from a find- 5 years before they become becomes present for half the time in the five
ing of abandonment. While length eligible for Medicare. The parent years preceding the filing of the
of time may not be used against must be 65 or older and must have naturalization application and they
the green card holder with a valid worked for 40 quarters. Most new have also been continuously resid-
reentry permit in a finding of aban- green card holders would not have ing during this period.
donment, other activities reflecting worked 40 quarters, and they may Upon being naturalized, a US
abandonment may be considered. buy in to Medicare after they be- citizen is no longer subject to resi-
The reentry permit is burden- come eligible. The rules regarding dency requirements. If on the oth-
some to maintain for a senior parent Medicaid for low income green card er hand, the parent has a change
who visits the US a few weeks each holders are complex and confusing, of heart and does not wish to be a
year. Form I-131 must be filed only and depend on a person’s income, permanent resident of the US, it is
while the parent is physically pres- age and the rules of each state. The best that the parent formally aban-
ent in the US, and then the parent sponsor’s income on the affidavit of don that status by filing Form I-407,
m of must wait a few weeks for the bio- support may also be deemed to the otherwise IRS will still consider the
metrics appointment. If the parent
parent’s income. Further informa-
parent a resident alien for tax pur-
CYRUS D. MEHTA & PARTNERS PLLC is unable to wait for the biometrics tion is available here. poses.
_________________________________________________________________________________________________
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta

& Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5
Committee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary

  Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
   
­ of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
€
‚  
Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
2 6th Floor the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked

    in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.
www.TheIndianEYE .us