Charles M. Goldsmith Green Cards Law Blog on Lawyers.com

As a practicing immigration attorney in New York for forty years, I have never seen so many instances where people with green cards have been questioned at the ports of entry and lost their green card status because they “spent too much time outside the U.S.” Unfortunately these unanticipated inquiries by I.C.E. inspectors often take place after a long flight when the traveler is tired and too readily surrenders his green card because he is too intimidated to properly respond and was not prepared for the confrontation.   In many situations, being aware of the issues and taking the necessary steps as recommended below can save a person’s green card status.

HOW TO PRESERVE LAWFUL PERMANENT RESIDENT STATUS

Lawful permanent resident (LPR) status can be lost unintentionally by actions that lead the U.S. Government to conclude that the status has been abandoned. Many people are under two mistaken beliefs: (1) if an LPR returns to the U.S. at least once every year, his/her permanent residence status is automatically preserved, and (2) if an LPR remains outside the U.S. continuously for more than one year, his/her permanent residence status is automatically lost. Although both statements are generally correct, there are important exceptions. This advisory opinion will discuss the most common actions that can result in the loss of your LPR status, and will recommend certain steps that you can take to help preserve your LPR status.

An LPR may return and re‑enter the U.S. after a temporary absence abroad of less than one year by simply presenting his/her "green card" at the port of entry as proof of LPR status. However, all aliens returning to the U.S. are subject to inspection by the U.S. Government and an LPR who returns to the U.S. after an overseas trip of less than one year does not have an automatic right of re‑entry into the U.S. The key issue the Government considers when deciding whether or not to admit an LPR as a returning resident is whether at the time of departure from the U.S. and/or while overseas, did the LPR always intend to return permanently to the U.S.? In other words, was the LPR traveling abroad truly for a temporary purpose with the intention of resuming permanent residence in the U.S. after the purpose of the temporary trip abroad has been accomplished?

Among the most important factors the Government looks at upon the LPR's return in deciding whether there was an intention to abandon residence include:

a.      The reason for departing the U.S.;

b.      The length of the visit abroad;

c.      Whether the LPR is returning to the U.S. to permanently live or work in the U.S.;

d.      Whether the LPR has strong family ties in the U.S.;

e.      Whether the LPR has filed U.S. income tax returns without claiming non‑resident alien tax status.

If the Government believes that the weight of the evidence indicates that the LPR has "abandoned" his/her permanent home in the U.S. because he has established or re-established a permanent residence overseas, the fact that the LPR has returned to the U.S. from a trip of less than one year will not necessarily protect his/her LPR status. It has been our experience that the Government will not usually question LPR’s the first two or three times they attempt to enter the U.S. after a long trip abroad. However, the Government does become suspicious when a clear pattern develops of long sojourns abroad, interrupted only by short stays in the U.S.

The general rule regarding absences outside the U.S. of more than one year is that the LPR will lose his/her status. However, under certain circumstances an absence of greater than one year can, as a matter of discretion, be excused. An LPR wishing to protect and preserve his status in this situation can do one of three things: (1) obtain a returning resident visa from an American Consul in the country where the LPR was visiting; (2) request a waiver of the visa requirement from an immigration officer at the port of re‑entry (this requires the LPR to demonstrate good cause for the extended absence, e.g. an unforeseen extended stay in a hospital) ; or (3) since there is strong likelihood that a returning resident visa or a visa waiver will not be issued to someone who has been out of the country for more than one year, LPR’s should apply for a re‑entry permit before they leave the U.S. This re-entry permits may allow them to remain outside the U.S. continuously for more than one year. Re‑entry permits will be discussed in greater depth later in this advisory opinion.

Recommendations for Preserving LPR Status

1.        As the length of time an individual remains abroad is an important factor in determining whether the LPR status has been abandoned, the sooner an LPR returns to the U.S. from an overseas trip, the more likely it is that the Government will determine that the trip abroad was only temporary and that the LPR still intends to reside permanently in the U.S. One trip to the U.S. every eleven months is like a red flag which often initiates the Government’s suspicion of abandonment. If possible, we recommend trying to avoid trips overseas of more than six month’s duration.

2.        Owning a home or leasing an apartment, maintaining a U.S. bank account, paying local property and U.S. Federal income taxes as a resident alien, maintaining U.S. credit cards, library cards, and possessing an unexpired driver's license are strong indicators of an intention to return permanently to the U.S.

3.        If the LPR’s family remains in the U.S. while the LPR is overseas, this is a very strong factor indicating the necessary intent to reside permanently in the U.S., from the Government’s perspective.

4.        If the LPR remains outside the U.S. for a long time because of unforeseeable circumstances that arose after his/her departure (e.g. illness or death in the family) and evidence is presented to support this, the Government is more likely to consider the trip abroad to be of a temporary nature.

5.        If an LPR is ordered to report for overseas employment by his/her U.S. employer and is expected to return to the U.S. employer upon completion of his/her overseas assignment, the LPR's absence(s) from the U.S. pursuant to such employment will normally not be considered an indication of an intent to abandon LPR status. In this situation, it is advisable to obtain a letter(s) from the U.S. employer or other employment records that confirm that the employment overseas was at the request of the U.S. employer; and if eligible, the LPR should consider filing an application to preserve residence for naturalization purposes with USCIS before departing the U.S.

6.        When traveling abroad, we recommend leaving some possessions permanently in the U.S., where feasible, such as an automobile, furniture, clothing, etc.

7.        When returning to the U.S., it is advisable to use a one‑way ticket, or a round‑trip ticket which terminates travel in the U.S. A round‑trip ticket with a final destination abroad might be construed as an intention on the part of the LPR to return abroad on a permanent basis.

Re‑Entry Permits

An LPR who intends to depart from the U.S. for an extended period of time may apply for a re‑entry permit. The re‑entry permit may allow the LPR to remain outside the U.S. for up to two years and will create a permanent written record of the LPR's reason for traveling abroad and his/her intent at the time of departure to return to his/her permanent home in the U.S.

An application for a re‑entry permit must be made on Form 1‑131 and must be filed while the LPR is in the U.S. The form can be obtained online through the USCIS or through our office. The permit is usually valid for up to two years. If an LPR needs to remain outside the U.S. for more than two years, he/she must reenter the U.S. within the re‑entry permit's period of validity and then file for a new permit.

The USCIS’ approval of an application for a re‑entry permit is not automatic. The more time an LPR has been absent from the U.S. within the last few years, and the less credible the reasons for having to remain abroad temporarily for such extended periods of time, the greater the likelihood that the USCIS will conclude that the LPR's primary ties are not in the U.S. and that the prospective departure may not be a temporary one. In such a situation, the Government could refuse to issue the permit.

A re‑entry permit will not be issued for a two year period if the LPR has been a permanent resident for more than five years but has been outside the U.S. for more than four of the last five years. In this situation, it may be limited to one year period.

Conclusion

Understanding the Government’s requirements, following some of the above suggestions, and careful planning should prove helpful to an LPR in avoiding problems with the Government’s refusing his/her right to re‑enter the U.S. as an LPR. Needless to say, whenever you intend to remain outside the U.S. for more than one year, it is essential to apply for a re‑entry permit prior to your departure from the U.S.

Please do not rely exclusively on this advisory opinion as legal advice, since it is not intended as such. It is merely intended for informational purposes. Furthermore, exceptions exist to every rule, and the U.S. Government’s rules and policies may have changed from the time this advisory was written to the time the LPR seeks guidance on this issue.

For more than 30 years, the law firm of Garganigo, Goldsmith & Weiss has been assisting people with immigration, green card or visa issues. For more information on how our immigration lawyers in NY can help, please call us at 212-643-6400, email us online, or visit our office at 14 Penn Plaza, Suite 1020, New York, NY 10122.