THIS WEEK’S IMMIGRATION QUESTIONS: 

Question:  I have a question that arose from a meeting with a tax attorney specializing in expatriates.  We agreed that it is advantageous for my wife to relinquish her green card status because we are living in Jamaica full time now and are not likely to return to the U.S., and she is earning substantially more than the IRS-allowed exclusion.  (I am a U.S. citizen and we have been filing jointly). My question is whether she must do anything to formally surrender the green card, or does it automatically lapse/become invalid after a period of one year from the jost recent departure from the U.S.?

Answer:  Your wife’s status as a resident would normally not expire, but if she tried to enter the U.S. after one year using the Green Card, the Immigration Officer would likely confiscate it from her and tell her that she had abandoned her U.S. residency. Your wife can go to the U.S. consulate closest to you and complete a form I-407 to formally relinquish permanent residency status. She can then mail her green card to the consulate with a letter requesting relinquishment of her residency status, along with the I-407 form. However, after years of hearing clients tell me how regretful they are that they formally relinquished their Green Cards, my advice is to think long and hard about the issue, before making a final decision.

Question:  I am wondering how I should go about this process. I just became a U.S. citizen and am currently going through a divorce in Trinidad (my ex-wife lives there), which is not yet final. I have been separated for 5 years. However, I am currently engaged to my fiancée who is in Jamaica and does not have a Tourist Visa, so she cannot come into the U.S.  I am curious, I read about the Fiancée visa in one of your columns last year and have been discussing it with my fiancée ever since. We want to know whether I need to wait until the divorce is final to start the K-1 fiancé visa process or can I start the process now as long as I have my final divorce decree by the time the visa for my fiancée is approved?

Answer:  Your divorce must be final for you to proceed with a K-1 fiancé visa petition. The regulations require that both you and your fiancée are eligible to marry (meaning “single”). You have a few options though. You could get a quick divorce in the U.S. (as long as your wife agrees to sign) in as little as 60 to 90 days. Another option is to look at other types of visas which could be used to get your fiancée in the U.S., for instance a Student (F-1) visa or some kind of work visa like the H-1B (if she has the equivalent of a Bachelor’s degree). Then, she can come into the U.S. and maintain legal status in the other visa category until you have obtained your divorce. At which point you can marry and file her Green Card application right away. You would not need the fiancée visa at that point, since she would already be in the U.S. Good luck!

Question:  I have read that there are two kinds of citizenship - state citizens and Federal citizens. Can a person be either of these to be a citizen of the United States? Also, is there a difference between a national of the United States and a federal citizen?

Answer:  A person can only be a citizen of the US, not a citizen of a state. However, states have separate rules regarding who is a “resident” of the state. This makes a difference in taxation, filing cases in court like divorces and access to benefits such as in state tuition discounts for state residents. This does not, however have a relationship to immigration “residency” and does not confer any immigration status on foreign nationals. For instance, you could visit Miami from Jamaica, decide you want to stay here and obtain an H-1B work visa or F-1 to go to school, then rent an apt, etc. After six months, you are considered to be a “resident” of the state of Florida for many purposes. For instance, if you are married and you want to divorce in Florida, you have established that you are a resident of the state and eligible to file a petition in its courts. But, you have not obtained any immigration residency. This must be done by petitioning with the USCIS based upon some eligibility, such as marriage to a U.S. citizen, through employment, etc.