Dad and mom hold US green cards. However, they have been out of the US since January 2008, due to dad's illness. Dad's illness resulted in major surgery (quadruple open-heart surgery) in November of 2008 and he is currently recuperating and doing follow-up doctor's visits. He received a letter from the surgeon(s) with the details verifying the surgery. Although the time spent away was unavoidable (dad is 80 and mom is 78), they are concerned about being interrogated by US immigration when they are given the okay to travel.

All five children, grand-children (12) and three great grand children reside in the states with their families. Four of the five children are naturalised citizens. The other is a permanent resident and is going through the process of applying for US citizenship. How best should our parents prepare for re-entry into the states once the doctors give dad the okay to travel again?

-AD

A Lawful Permanent Resident (LPR) to the United States, otherwise called a Green Card holder, is required to live and work in the United States. If the Green Card holder spends too much time outside the United States, it raises a presumption that they are not living and working in the US. This presumption is heightened if the person has spent six months or more outside the US, and, if you have spent a year or more outside the country, without prior authorisation, you can be deemed to have abandoned your residency.

The determination on your residency status is made by the Customs and Border Protection (CBP) officer at the port of entry into the US. If you travel as a Green Card holder or a US citizen, there is no standard set of questions from the CBP officer. Sometimes a person is asked how long they have been outside the US, and or what was the purpose of their visit. On other occasions, no questions are asked. Certainly, any questions asked must be answered truthfully. At that point, the CBP officer makes a determination whether to admit the Green Card holder or not.

Re-entry permit

If the CBP officer determines that the Green Card holder has not been living in the US from their pattern of travel, i.e. they have spent more time outside the US than inside, the CBP officer can cancel their Green Card and return them to their home country. More often than not, if the CBP office recognises that the Green Card holder is not spending enough time in the US, they will recommend that the immigrant apply for a re-entry permit.

In the case of your parents, they have been outside the country for more than a year so they should not travel back to the US without first obtaining returning residency status from the Department of Homeland Security in Jamaica. Your parents must show that they never intended to abandon their residency when they last left the US, and that they remained in Jamaica for as long as they did for reasons beyond their control.

Proof of legal residence

Your parents must prove they were lawful permanent residents. Each has to pay a US$400 filing fee and provide proof of the reason why they were in Jamaica for so long. In their case, it should not be difficult to meet the standard of proof. They will need letters from the doctors, stating your father's illness, prior to the surgery in November, 2008, and all proof of the continued care. Your mother's explanation has to be that she was playing a supporting role to her sick husband.

The application and supporting documents are to be filed with the Consular Section at the United States Embassy at 142 Old Hope Road, Kingston 6. The Consular Section has a service window open to the public, Monday-Friday, 8:00 a m - 11:00 a m. Make sure to apply for the returning resident status, in advance of the planned travel date, to allow enough time for processing of the request.

If, for any reason, the request is denied, any one of your parents' US citizen children can file for a new Green Card for them. As the relative of a US citizen, your parents would be considered immediate relatives and their request for a Green Card would take approximately nine months to a year to be processed.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com or editor@gleanerjm.com.