Discussion:Green card expired, still a resident?

File this under "you can't make these things up."

Apparently the IRS considers a once-upon-a-time green card holder to be still a resident alien for tax purposes (ie, required to file and report worldwide income) until there is an official surrender or revocation, even if the green card is no longer valid for immigration purposes. (see below.)

I have a number of US citizen clients living abroad married to people they told me were aliens with no US source income, and it turns out a couple of them once had green cards and just let them expire without surrendering them officially. I have been filing MFS with NRA spouse exemption for some of them, and I'm not sure what to do about it. I only discovered this because one of the couples moved to the US and I'm afraid that when I start filing them jointly the IRS is going to say "where has he been all these years." This prompted me to go back and ask more detailed questions to my other clients.

Have you ever run into this?

David

[From "Basic Tax for Green Card Holders"] What if I have been absent from the U.S. for a long period of time? Your tax responsibilities as a green card holder do not change if you are absent from the U.S. for any period of time. Your income tax filing requirement and possible obligation to pay U.S. taxes continue until you either surrender your green card or there has been a final administrative or judicial determination that your green card has been revoked or abandoned. Therefore, even if the U.S. Citizenship and Immigration Service (USCIS) no longer recognizes the validity of your green card because you have been absent from the United States for a certain period of time or the green card is more than ten years old, you must continue to file tax returns until there has been a final determination that is not subject to appeal that your green card has been revoked or abandoned.

(6) Lawful permanent resident

       For purposes of this subsection, an individual is a lawful
     permanent resident of the United States at any time if -
         (A) such individual has the status of having been lawfully
       accorded the privilege of residing permanently in the United
       States as an immigrant in accordance with the immigration laws,
       and
         (B) such status has not been revoked (and has not been
       administratively or judicially determined to have been
       abandoned).

Sec. 7701

Has this been repealed? The IRS speaker at the 1040NR seminar at the recent IRS Forum seemed to think it was still in effect -- it was part of his presentation.

It does not seem to apply only to long-term residents.

And if the rule is in effect, any advice on how to handle my clients' spouses?

David H

An immigration lawyer is also needed to handle the I-407.

Since the gren card was not surrendered or revoked, then what makes you think that the green card spouse was a NRA simply because his/her green card had expired ?

You say that the green card spouse is now back in the USA. He/she could have only been admitted to the USA if he/she renewed the green card or entered on a visa.

Before you prepare any future returns you need to find out if the green card was renewed, or if not renewed ... then what type of visa was used to enter the USA.

Once you learn of the type visa used, then that will determine the filing status of current and future returns.

I sent an email to my other clients with NRA spouses and asked if they had ever had green cards. So far no new cases have turned up.

But I ran into the following situation involving an "expired" green card: The husband is a US citizen, the wife a French citizen, they have been living in a third country for many years. They told me the wife had a green card so they have been filing jointly. Now it turns out that the ICE does NOT consider her green card valid for entry to the US, so she needed to get another type of visa (see below).

QUESTION: Is she a lawful permanent resident (LPR) or not? Does the non-recognition of her green card and the issuance of another visa constitute a "revocation" of her green card? Does she need to file as NRA?

FYI, here's what the husband wrote. Anyone know what type of visa he's talking about?

"Homeland Security has come up with a set of new restrictions that are being applied retrospectively.  XXXX is currently on a special new visa (a "Travel Document" - big $$$) which allows her to work temporarily in XXXXX.  That appears to override the Green Card; it is the document checked now when coming and going.  She still possesses a Green Card (from 1985!) but its status and future are unclear."

Guya: The provisions I saw in the Hero's act seemingly only relate to citizens and Long Term Residents (LTRs) who are subject to the expatriation rules. I don't think they are relevant to LPRs who have not revoked or surrendered their green cards. They are still residents, period, no? Is there another part of the bill I missed?

David H

Here is an example. Jim, a US citizen, marries his Japanese girlfrind (Miko) in Tokyo. He brings her to the US on some type of temporary marriage visa. They plan on living in the US permanently. While in the US, she files an application to the USCIS for a green card. (Note: it can take as long as 6 months - 1 year to have a green card application processed and approved). A few weeks after she files the application, she has a family emergeny in Japan and she most go to Japan for two weeks. The USCIS will allow her to fly to Japan without a green card ... but she cannot reenter the US without a green card). She has no green card yet, so if she goes to Japan she will not be allowed back into the USA by the USCIS. The USCIS realizes that people, waitng for a green card application to be approved, can have an emergeny arise ... so the USCIS allows her to quickly apply for and receive a "travel document" from the USCIS for the sole purpose of going to Japan to take care of her family emergency. The travel document alloes her to reenter the USA and then contine waiting for the green card.

It sounds to me like your client's wife has had a green card for years, that it expired(while she was in the USA) and while she was waiting for renewal application to be processed and approved ... she left the USA on some personal emergrncy bu obtained a "travel document" before she left the USA. Now she is back in the USA (entey by use of the travel document) and she is still waiting for her renewed green card to be mailed to her by the USCIS.

To return to my original point, however: After this discussion and after looking at sec 7701 and Reg §301.7701(b)-1 it still looks to me as though simple "expiration" of green card does not terminate LPR status in a situation where the TP has not done anything else affirmative to terminate that status. Are we all agreed on this? If so, I still need to figure out how to deal with my clients whose spouses I thought were NRAs but now appear to be LPRs.

7701(b)(6) says a green card holder is an LPR until it is "revoked." Apparently, then, simple expiration does not count as "revoked." But does being denied entry to the US -- being required to apply for a new visa -- count as an administrative revocation for the purposes of 7701?