Sunday | March 1, 2015

She wants to go back to the US

Published:Tuesday | February 19, 2013
Dahlia A. Walker-Huntington

Dear Mrs Walker-Huntington,

A friend of mine who used to reside in the United States (US) 16 years ago left suddenly and returned to Jamaica because her children's father was involved in certain activities. This friend had a green card, which was permanent at the time. However, she has not returned to the US since leaving. The reason she claimed she left was that she was afraid of law enforcement and that her then children's father had been arrested and she was getting implicated in his activities. Now she would like to know if her green card is still valid, after 16 years out of the country, and whether she can reclaim her residency status. What should she do, and does she still have legal status (residency) in the US?- GD

Dear GD,

Your friend has a couple of issues she has to contend with. First of all, if she left the US because she was implicated in a criminal investigation, it would be in her best interest to hire a lawyer in Florida to find out the status of that investigation, e.g. if she was charged with a crime. Depending on the level of her involvement in the activities of her children's father, she may also have other reasons to be fearful of returning to the US.

As a green card holder, her absence from the US for 16 years is the abandonment of her residency. She would not be able to reclaim her residency with such a long absence. A green card holder who leaves the US on a short trip that ends up being for more than a year can apply to go back as a returning resident. That application has to show that the person stayed out of the US due to unforeseen circumstances and retained residency in the US, although they never returned. If they did not, they must explain why.

In this instance, your friend seemed to have fled investigation/prosecution and purposely remained in Jamaica for 16 years. Therefore, the returning-resident option would seem to be out of the question.

If she is not the subject of a criminal investigation and she has a qualifying relative, an adult US citizen son or daughter, a US citizen parent or spouse, they can petition for her for a new green card. Keep in mind that if she has a criminal background, it may prevent her from receiving a new green card at her interview.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and Special Magistrate in Broward County, Florida.