# DV-2012: Returning to US after 364 days?



## Powka (Dec 17, 2012)

Hello everyone!

I have won DV2012 lottery, entered the USA on July 4th 2012 and left the USA on July 20th 2012. I then received my green card sometime in September 2012.

I was planning on returning to the USA in June 2013, so less than a year (365 days).

1) Am I going to have any problems entering the US on this occasion? As far as I'm aware, I don't break any rules if I come back to the US after less than 365 days. Please correct me if I'm wrong.

2) After my second entrance to the US in June 2013, can I leave the country again for another year (less than 365 days), or will this be considered as breaking some rules and I will be risking of loosing my green card?

I'm 23, no children, no family coming with me to the US, completely on my own. I don't have anyone in the US too. 

Please help if you *know for sure* about this, I need this information very badly. I was planning on staying to live when I come to the US in June 2013, but some personal things have came up that I might have to stay another year in the UK, and only then come back to live.

Thanks in advance for any info!


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## EVHB (Feb 11, 2008)

If you leave the US for more than 6 months, you are supposed to apply for a re-entry permit before you leave the US. Otherwise your PR status can become invalid. As a PR your main residency needs to be in the US, it's not a tourist visa.

See www.uscis.gov/USCIS/Resources/B5en.pdf
And don't forget about your obligations: USCIS - International Travel as a Permanent Resident


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## Powka (Dec 17, 2012)

Are you sure it's 6months? Because in the handout that they gave me in the embassy after my green card interview it said that I have to apply for the permit if I leave the country for more than 365 days. I also seen many cases where people return after less than a year without any questioning at the point of entry in the US.

Also, does anybody maybe know what should I do now in case the above poster is correct (would be great to find this mentioned in the official website somewhere)? Whom should I contact about the issue, if there is anyone? I can still go back to US before January 20th to avoid this, but obviously I would like to avoid it.

I also found this information, which I would be very grateful if someone could confirm:

"_It is extremely unlikely that you'll be referred for a GC revocation hearing at your next reentry, assuming that it happens after less than a year absence. If the CBP officers notice a problematic travel pattern, they will usually issue the GC holder several warnings upon readmission (these warnings do get recorded in the CBP file for the person in question), and only then would they send the GC holder to an immigration judge for a GC revocation hearing._"

Thank you!


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## belgarath (Jul 15, 2011)

As far as I know, the initial entry visa is valid for 1 year so it should be OK. The visa itself says that "upon endorsement, valid 1 for year"

The subsequent entries might be a problem though.


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## twostep (Apr 3, 2008)

364 days is pushing it:>) Nobody can tell if entry will be granted or not. Let's assume the reasons for this time outside the US are real issues and OP can provide proof also proof of his intentions to move his life - worth a try? Tax return is not due until April 16 but I hope he has registered with Selective Service.


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## belgarath (Jul 15, 2011)

Regarding tax return, if the OP did make less than 91k USD last year, there should be no taxes due. (but he/she still has to fill in a lot of forms - damn the US tax system) 

powka, did you get your SSN?


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## twostep (Apr 3, 2008)

belgarath said:


> Regarding tax return, if the OP did make less than 91k USD last year, there should be no taxes due. (but he/she still has to fill in a lot of forms - damn the US tax system)
> 
> powka, did you get your SSN?


Please give an official link stating that no US tax return will be due under reportable income of 91K USD. This might interest other posters as well.


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## Bevdeforges (Nov 16, 2007)

twostep said:


> Please give an official link stating that no US tax return will be due under reportable income of 91K USD. This might interest other posters as well.


I don't think belgarath is saying that there is no tax return due, but I do think there is some confusion about the "foreign earned income exclusion" here.

The OP is only entitled to use the FEIE if s/he has been resident outside the US for the full tax year, or physically present outside the US for at least 12 consecutive months. By taking the FEIE, the OP is basically admitting that s/he has violated the terms of the green card, which is, after all, a residence permit.
Cheers,
Bev


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## twostep (Apr 3, 2008)

Bevdeforges said:


> I don't think belgarath is saying that there is no tax return due, but I do think there is some confusion about the "foreign earned income exclusion" here.
> 
> The OP is only entitled to use the FEIE if s/he has been resident outside the US for the full tax year, or physically present outside the US for at least 12 consecutive months. By taking the FEIE, the OP is basically admitting that s/he has violated the terms of the green card, which is, after all, a residence permit.
> Cheers,
> Bev


Please correct me - nothing is due until April 16, 2013.


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## Bevdeforges (Nov 16, 2007)

twostep said:


> Please correct me - nothing is due until April 16, 2013.


The 2012 return isn't due until 2013, but I wonder if the OP filed for 2011?
Cheers,
Bev


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## Powka (Dec 17, 2012)

Yes, I will have earned less than 91k by the end of the tax year of 2012/2013, so I will be filling those forms for tax exemption. I've raised this question on a few other forums, and a few lawyers (apparently) told me that I should qualify.

I haven't filled anything for 2011 though, do I need to? I went through my green card interview on February 2012, and received my visa by the end of that month. Then I have entered the US in July 2012, and received my green card in September 2012. So technically, I wasn't a permanent resident in 2011. Should I have still paid taxes for that year?

Can anyone else please confirm if I should be alright with re-entering the US after less than 365 days? It's not going to be _exactly_ 364, more like 330 days probably (June 2013), but still... I don't have any proof of anything, because I left the US after the initial entry for a simple reason - I had a job in UK, and I wanted to earn a little before the move to the US. I didn't think that it might be a problem or that I might break any rules, because it said that it's alright to be outside of the US for less than a year the first time.

I guess if this kind of situation is already in question, then leaving the US again is* really* pushing it, huh? I would apply for the re-entry permit, but I've read that I need to stay in the country for about 5-6 weeks till everything gets approved, but this just ruins the whole point of leaving so I might as well just stay in the US then.

Thanks everyone for replies, I appreciate your input!


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## twostep (Apr 3, 2008)

Bevdeforges said:


> The 2012 return isn't due until 2013, but I wonder if the OP filed for 2011?
> Cheers,
> Bev



If I read the post right - GC was activated 2012. Is that not when the clock starts ticking?


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## Powka (Dec 17, 2012)

twostep said:


> If I read the post right - GC was activated 2012. Is that not when the clock starts ticking?


Yes, it was indeed activated on 2012. I had absolutely nothing to do with 2011. So I am alright with the taxes for 2011 then?

There still is a massive question mark of re-entry after less than 365 days, but over 6 months though... 

Does anybody know, in case of the homeland security officer at the point of entry decision to put my GC on trial, how long does it take before I would have to appear in front of the immigration judge for the final decision?


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## Bevdeforges (Nov 16, 2007)

OK, I admit I didn't go back and re-read from the beginning. You have no tax obligation until you're actually "resident" in the US - and it looks like, for you, that is 2012.

But unfortunately, I don't think anyone can guarantee what reception you'll get on your return after 364 days. Friend of mine has a sister-in-law with a green card, who has been living outside the US for several years now. When she tried returning on her green card, she wound up answering lots of questions and being detained for quite a while, even when accompanied by her USC husband and kids. For the last couple of years she has entered the US on her British passport (though normally they are visiting for something less than 90 days). 
Cheers,
Bev


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## belgarath (Jul 15, 2011)

Regarding Tax Eligibility :

Foreign Earned Income Exclusion - Physical Presence Test

If you stay 330 days outside the US, you look like to be eligible for FEIE, for which the ceiling is raised to 95K for 2012. So the OP looks OK on this front - just fill in the correct form and you owe nothing.

Regarding entry :

The I-551 visa is valid for 1 year upon endorsement (stamping), so even if they raise some questions at the border, the OP may reply that he is moving permanently to the US within the allocated period. 

Having said that, waiting for the last month can be risky, some unexpected things may occur - planes cancelled, natural disasters, etc. - so it's best to arrive 45-60 days before the visa expiration.

I am more or less in the same situation and will have to decide real soon whether to move or not.


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## Powka (Dec 17, 2012)

belgarath said:


> The I-551 visa is valid for 1 year upon endorsement (stamping), so even if they raise some questions at the border, the OP may reply that he is moving permanently to the US within the allocated period.
> 
> Having said that, waiting for the last month can be risky, some unexpected things may occur - planes cancelled, natural disasters, etc. - so it's best to arrive 45-60 days before the visa expiration.
> 
> I am more or less in the same situation and will have to decide real soon whether to move or not.


Thanks, but I think you misunderstood me.

I don't have a visa, I already have my green card. I received my visa on February 2012, went to the US, then got back and then received my GC on September 2012. So as I'm going with a green card, technically, I'm supposed to be a permanent resident in the US already.l


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## Powka (Dec 17, 2012)

I have emailed a consular at one of the contacts I have found with @state.gov, and I've just received a reply from them:

"_Green card holders may stay outside the United States for one year minus one day. And it does not matter, is it the first time or any other time of travel. But if an LPR uses this rule every year, let’s say resides in United Kingdom and enters the U.S. ones per year, of course, the border inspectors may have additional questions to this LPR.

We cannot foresee what could happen to you while traveling, but from your letter we understand that you did not break any rules yet, therefore your assumptions are a little bit too exaggerated. The officers do not take cards away without any serious reason. Right now we do not see any reason for worries, but again, we never can predict what can happen at the border._"

Any thoughts?


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## belgarath (Jul 15, 2011)

Makes sense, and I believe you'll have no issues at the border.

Just like they told you, if one repeats this process every year and uses the GC as a tourist visa and/or a backup US escape card, eventually problems shall arise but you have no such intentions as I make it and should have no issues.

Good luck!


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## Powka (Dec 17, 2012)

belgarath said:


> Makes sense, and I believe you'll have no issues at the border.
> 
> Just like they told you, if one repeats this process every year and uses the GC as a tourist visa and/or a backup US escape card, eventually problems shall arise but you have no such intentions as I make it and should have no issues.
> 
> Good luck!


Thank you!


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## twostep (Apr 3, 2008)

Powka said:


> I have emailed a consular at one of the contacts I have found with @state.gov, and I've just received a reply from them:
> 
> "_Green card holders may stay outside the United States for one year minus one day. And it does not matter, is it the first time or any other time of travel. But if an LPR uses this rule every year, let’s say resides in United Kingdom and enters the U.S. ones per year, of course, the border inspectors may have additional questions to this LPR.
> 
> ...


Sorry - I do not buy the verbiage as coming from an official source.


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## Powka (Dec 17, 2012)

That's the email address I sent a question to - [email protected]

I thought that if it's @state.gov, then it should be an official source. I can't find any other contact email address where to send my inquiry.


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