LAW OFFICES CLARA DIEZ

IMPORTANT CONSIDERATIONS AFTER BECOMING A PERMANENT RESIDENT*

Many individuals who obtain lawful permanent residence [LPR] in the U.S. relax when they obtain a Green Card, believing that they can finally travel freely back and forth or even relocate to their home countries, and that they can always re-enter the U.S. using their Green Cards as a travel document. While a lengthy absence from the U.S. does not automatically cancel the LPR status of an alien, an extended absence may trigger the inquiry of the USCIS as to the alien's intention to remain a permanent resident of the U.S.

The intent of an LPR to remain a permanent residence in the U.S. is a key factor in the USCIS's determination of whether the LPR has abandoned his/her permanent residence in the U.S. However, a mere oral or written statement of intent to remain a U.S. resident to the USCIS is not sufficient. Apart from the length of the absence from the U.S., the USCIS will look to many objective facts that reflect the LPR's intent.




The Factors Indicating Intent:


  1. The length of the LPR's absence from the U.S.;
  2. The purpose for the LPR's departure;
  3. The existence of facts evidencing a fixed termination date for the stay abroad;
  4. The continued filing of U.S. tax returns with the IRS in a resident status;
  5. The location of the LPR's close family members;
  6. The location and nature of the LPR's employment abroad;
  7. The maintenance of other ties with the U.S. including mailing address, bank account, ownership of property, driver's license, club membership(s), mortgage, credit card, etc.




The Totality Test to Determine the Alien's Intent

No single factor in the above list is controlling with regard to the alien's intent to maintain legal permanent resident status in the U.S. The USCIS officers will analyze all relevant factors and look to the "totality of the circumstances" to decide.

As a general rule, if an LPR leaves the U.S. for one year or less, he/she can use a Green Card as a re-entry document. By contrast, when an alien is absent from the U.S. for more than one year, he/she may have a difficult time re-entering the country because the USCIS takes the position that an absence of longer than one year in duration indicates a possible abandonment of U.S. residency. LPR’s who have been out of the U.S. for more than one year will need to obtain re-entry permits or special immigrant visas.




FAQs:

1. Does travel outside the United States affect my permanent resident status?
Permanent residents are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status.  A general guide used is whether you have been absent from the United States for more than a year. Abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence.

2. What if my trip abroad will last longer than 1 year?
If you plan on being absent from the United States for longer than a year, it is advisable to first apply for a reentry permit on Form I-131. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit’s validity without the need to obtain a returning resident visa from a U.S. Embassy or Consulate abroad.  Please note that it does not guarantee entry into the United States upon your return as you must first be determined to be admissible; however, it will assist you in establishing your intention to permanently reside in the United States. 

 3. What if I am absent for more than 2 years?
If you remain outside of the United States for more than 2 years, any reentry permit granted before your departure from the United States will have expired. In this case, it is advisable to consider applying for a returning resident visa (SB-1) at the nearest U.S. Embassy or Consulate. An SB-1 applicant will be required to establish eligibility for an immigrant visa and will need a medical exam.  There is an exception to this process for the spouse or child of either a member of the U.S. Armed Forces or civilian employee of the U.S. Government stationed abroad on official orders.  

4. What if I am never absent for more than one year?
Many LPR holders believe that in order to keep their LPR status, they can simply return to the U.S. once a year and stay for several weeks.This is an error. Merely returning to the U.S. and using the Green Card once a year has little bearing on the question of whether the LPR has maintained the intention to remain a permanent resident of the U.S. In fact, although some aliens return to the U.S. more often than once a year, they lose their LPR status because they lack sufficient ties with the U.S. An LPR alien may have multiple residences, but he/she must show that the U.S. residence is the permanent one. Therefore, all LPR’s who wish to keep their Green Cards should take the steps necessary to establish sufficient facts evidencing that they are maintaining strong ties with the U.S. and retaining the U.S. as their permanent home.

5. What are the recommended steps to assure continuity of LPR status?
An LPR who will travel abroad for a considerable length of time should take certain steps to assure that his/her permanent resident status will not be lost. Among these steps are:


  • Filing Tax Returns as a U.S. resident

Under all circumstances, an LPR must file tax returns as a U.S. Resident Alien annually with the IRS. To properly file such a tax return, the LPR must claim his/her worldwide income in the return. Filing a tax return as a resident alien does not necessarily mean that the alien must actually pay income taxes if he/she is employed overseas, because treaties and foreign tax credits may minimize the tax amount actually paid to the IRS. Filing tax returns as a non-resident alien will give an assumption that the alien has abandoned his/her U.S. permanent residency.


  • Strong family ties in the U.S.

If an LPR is employed abroad or has to travel overseas for a considerable length of time, it is preferable for his/her immediate family members, including any spouse, children, and parents, to remain in the U.S.  Documentation of strong family ties to the U.S. shows the LPR's intention to keep his permanent resident status.


  • Overseas employment

Employment abroad is the most common reason that LPRs are absent from the U.S. for an extended period. A written statement from the employer, or an employment contract identifying the length and term of the overseas job, will help provide objective facts for the analysis with regard to the LPR's intention to retain his/her permanent resident status. In addition, if possible, a statement that the LPR will be transferred back to the U.S. after the completion of the overseas employment will be very helpful.


  • Other strong ties with the U.S.

Even if an LPR is engaged in overseas employment and/or has close family members in the U.S., it is advisable to maintain as many ties with the U.S. as possible. If an LPR is not engaged in overseas employment and has no family members in the U.S., he/she must be able to establish other strong ties. The ties with the U.S. which evidence that an alien retains his/her U.S. permanent residence are listed as follows:


  • Maintenance of a mailing address in the U.S.:

An LPR should maintain a mailing address in the U.S. to receive mail. The LPR can designate his/her mailing address as the home of a relative or friend, or at the place where the LPR owns real property.


  • Keep a driver's license and renew it on time:

An LPR should maintain a valid driver's license throughout the period when he/she is absent from the U.S.


  • Maintain a bank account in the U.S.:

Before an LPR departs from the U.S., he/she should open a bank account with a U.S. bank, and leave it open and use it during the stay abroad. An active monthly bank statement is very helpful to document strong ties with the U.S.


  • Use a credit card:

Before an LPR departs from the U.S., he/she should apply for and obtain a credit card issued by a U.S. bank. Consistent use of the credit account will help to establish that the LPR has strong ties with the U.S.


  • Pay a mortgage:

While an LPR is staying outside the U.S.; he/she should keep up with payments on any house mortgage or car loan, and retain all records of payment.


  • Maintain professional or social memberships:

If an LPR is a member of a professional association in the U.S., he/she should  keep ties with the association, which includes paying dues or fees on time, receiving journals and/or attending annual meeting


  • Document good reasons to be absent from the U.S.

If an LPR is not employed abroad and no family members are present in the U.S., the LPR should be prepared to give good reasons with strong documentation for a prolonged absence, especially when the LPR has not established other strong ties with the U.S. This situation often arises when an alien becomes an LPR and before he/she establishes firm roots in the U.S. Good reasons for being absent from the U.S. include but are not limited to: taking care of a sick family member in the home country, taking care of family business abroad, liquidating overseas assets, administering the estate of a deceased relative, etc. Regardless of the circumstances, these reasons must be well documented.


6. Should I obtain a Re-entry Permit?

Lawful permanent residents or conditional permanent residents who wish to remain outside the U.S. for more than one year, but less than two years, may apply for a re-entry permit. A Re-entry Permit allows a permanent resident of the U.S. to re-enter the U.S. after travelling abroad for longer than one year but less than two years. As discussed before, if an LPR travels abroad for a period longer than one year, he/she faces a risk of denial of admission into the U.S. on the ground that he/she has abandoned his/her permanent resident status. A Re-entry Permit is designed to solve this problem.
In addition, a Re-entry Permit serves as a passport for a legal permanent resident of the U.S. if he/she has no passport and cannot obtain one from the country of his/her nationality.

7. How does my absence from the U.S. affect my future naturalization?

In order to qualify for naturalization, applicants must show:

a. Continuous Residence

Applicants are required to show that they have:

Resided continuously in the U.S. for five years before applying, or

for three years in the case of qualified spouses of U.S. citizens.

Extended absences outside of the U.S. may disrupt an applicant’s

continuous residence.

Absences of more than six months but less than one year may

disrupt an applicant’s continuous residence unless the applicant

can prove otherwise.

Absences in excess of one year or more may disrupt an applicant’s

continuous residence.



b. Physical Presence

Applicants are required to show that they were:

Physically present in the U.S. for thirty months within the five year                                            period before applying, or physically present in the U.S. for eighteen                                        months within the three year period before applying in the case of                                            qualified spouses of U.S. citizens.

In addition, applicants are required to show they have resided for at                                                least three months immediately preceding the filing of Form N-400 in                                             the USCIS district or state where the applicant claims to have                                                           residency.

8. Are there any exceptions to preserve my continuous residence in the U.S.?

The Immigration and Nationality Act allows for certain exceptions to the                                         continuous residence requirement for those applicants working abroad for:



If you seek to preserve your continuous residence for naturalization                                               purposes while employed abroad by one of these recognized institutions

you must file Form N-470, Application to Preserve Residence for                                                     Naturalization Purposes with USCIS. 

 
CONCLUSION:
These are general guidelines for lawful permanent residents to take into consideration if they intend to remain outside of the United States for certain periods of time.We hope this provides guidance to make determinations about your immigration status.

Please feel free to contact our office for advice on this topic.

 

NOTE:  The information included above does not constitute legal advice and is offered as information only. It is provided without any representations or warranties, express or implied. We make no representations or warranties in relation to this legal information. It represents a current summary of the USCIS regulations which are subject to changes and/or modifications. No attorney-client relationship shall be created through the use of this information. If you have any specific questions about any legal matter, you should  consult our office, your lawyer or other professional legal services provider.