My family and I are Canadian citizens. We recently made our entry into the United States as permanent residents. We then applied for social security numbers & are now in possession of the social security cards and green cards. Our problem is that I own a majority share in a company and am unable to immigrate now. I also own property in Canada. It may be a another year or two before we can immigrate. Is there any way we can stay in Canada & still preserve our permanent US residency status ? We are quite prepared to visit the US periodically and also open a bank account and send part of my earnings to my US account.

I have just uploaded an article on maintaining lawful permanent residence which is available here. It should answer most of your questions.

I would recommend that you obtain a reentry permit. As you would be remaining in Canada to liquidate assets, the INS should be willing to issue a reentry permit to you. Such permits are valid for up to two years and can provide some protection against losing lawful permanent residence.

A person became a U.S. permanent resident five years ago. He is ready to apply for becoming a U.S. citizen. He wants to tell the INS that he was a member of a communist party from 1982-1984 on the form for naturalization. The problem is, he concealed the information five years ago when he applied for the green card. What will be the legal consequences if he mentions the information this time?

Under INA §212(a)(3)(D)(i), aliens who have been affiliated with the communist or totalitarian party, whether domestic or foreign, are excludable. This person clearly made a prior misrepresentation in order to gain an immigration benefit. However, the question is whether the misrepresentation should be considered material. If the misrepresentation is material, this person would not only be denied naturalization, but would also be subject to deportation on the basis that he or she unlawfully obtained permanent residence through fraud or misrepresentation. However, if the misrepresentations is not material to obtaining a benefit under the immigration laws, it will not incur deportation.

It is clear that the authorities have not yet developed a uniform analytical construct to assess materiality in every case. However, the Supreme Court's decision in Kungys v. United States 485 U.S. 759, 108 S. Ct. 15371199 L.Ed. 2d 839, 5 Immig. Rptr. A1-16 (1988) may provide some guidance. In Kungys v. United States, the Supreme Court concluded that "in a naturalization context as elsewhere," a misrepresentation is material only if it "was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.

Kungys v. United States involved a person charged with Nazi persecutions during World War II who in his 1948 visa application and 1954 naturalization application had made false statements concerning the date and place of his birth, his wartime occupations, and his wartime residence. The Court found that the misrepresentations made in the visa application process were not material to the naturalization process, and that the misrepresentations in the naturalization application regarding the date and place of birth were not in themselves relevant to the naturalization process. Accordingly, they were not material.

Where communist party membership ended at least two years before the date of the application (or five years before the date of the application where the membership was in the party controlling the government which is a totalitarian dictatorship as of the date of the application) and where the alien is not a threat to U.S. security, this ground does not bar admission. You stated that the person had not been a member of the Communist party within the five years prior to applying for immigration. If that is the case, disclosure of this fact would not have prevented the person from obtaining permanent residence, even if membership was in the party controlling the totalitarian dictatorship at the time of the application. Therefore, the misrepresentation should not be material.

However, even if the misrepresentation is not considered material, in the context of a naturalization proceeding the INS is permitted to consider all of the applicant's prior conduct when assessing the applicant's good moral character, which is a requirement for naturalization. It is possible that the INS will conclude that the non-material misrepresentation establishes a lack of good moral character sufficient to deny naturalization. INA §101(f) specifically mentions that a person who has given false testimony to obtain any benefit under the INA, where the testimony was made under oath or affirmation and with the intent to obtain an immigration benefit, is not a person of good moral character. If this person made the misrepresentation under oath or affirmation, clearly it will have a bearing on this element of naturalization eligibility. Statements contained in immigration forms are often made under penalty perjury so it is possible that this applies to your friend.

There is at least a possibility that your friend's naturalization application will be denied on this basis. However, to deny the past Communist party membership in the naturalization application would be material, as it would have a bearing on the issue of good moral character.