Article Pub: Fears that fiancé stayed out of the U.S. for too many months

Thursday 30 November 2017

Fears that fiancé stayed out of the U.S. for too many months

Q: My permanent resident fiancé has been outside the United States for more than six months. Will immigration authorities give him a hard time when he tries to return? While my fiancé was working as an aid worker in Kabul, he fell ill and couldn’t travel back to the United States within six months. He now wants to return to the United States. He has proof of his medical condition.

Name withheld, Melbourne, Australia

A: Your fiancé shouldn’t have a problem returning to the United States. Customs and Border Protection officials are rarely concerned about a permanent resident returning after a single trip of more than six months but less than a year.

After six continuous months abroad, the law creates a presumption that a green card holder abandoned permanent residence. But a clear explanation is usually enough to rebut the presumption after a single trip. Of course, it’s best if the permanent resident, like your fiancé, has proof of why he or she was abroad so long.

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Q: How can my sister-in-law, a permanent resident, get her son here from Nigeria? Her son, a U.S. citizen, petitioned for her. When she immigrated, she left her 8-year-old son behind. She is suffering from cancer and because of treatment, she cannot travel abroad. Does her son qualify as a “derivative beneficiary,” a category you recently wrote about?

Name withheld, New York

A: Your sister-in-law must petition for her son. She does not need to travel abroad to get him. The process could take a few years.

Unfortunately, the child does not qualify for derivative beneficiary status. That status allows the unmarried children and spouse of a preference (quota) beneficiary to get a green card without being the beneficiary of a separate petition.

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Your sister-in-law immigrated as an “immediate relative” of a U.S. citizen, a category outside the preference system. It may seem odd that immediate relatives of U.S. citizens have fewer benefits than other immigrants.

Legal historians think Congress just made a mistake when it wrote the derivative beneficiary rule. However, as the law stands, the children of immediate relatives don’t qualify for green cards as derivative beneficiaries.

Allan Wernick is an attorney and director of the City University of New York’s Citizenship Now project. Send questions and comments to Allan Wernick, New York Daily News, 4 New York Plaza, New York, N.Y., 10004 or email to questions@allanwernick.com. Follow him on Twitter @awernick.