Becoming a permanent resident of the U.S. is not a quick process.
Yet green card holders sometimes take their status for granted and lose it through unintentional abandonment. This results from a host of reasons, such as staying outside the U.S. too long, being employed in the home country, and filing tax returns as a non-resident.
You may voluntarily and officially give up your U.S. residency by turning in your green card and filing a Form I-407, Record of Abandonment of Lawful Permanent Resident Status, with the appropriate U.S. Consulate or USCIS office.
But if you want to keep your lawful permanent resident (LPR) status, you should take these 6 critical steps to avoid unintentionally abandoning it:
1. Keep each trip abroad short (six months or less)
Being a permanent resident gives you freedom to travel overseas and re-enter the U.S. with your green card and a valid passport, without needing a visa.
Short visits outside the U.S. lasting less than six months are usually not a problem. Frequent travelers should return to the U.S. as often as possible and within six months of any departure.
Trips outside the U.S. lasting six to 12 months bring greater scrutiny and suspicion that you abandoned your residency. And trips outside the U.S. lasting more than 12 months lead to a presumption that you abandoned your residency. You will then have to convince the U.S. Customs & Border Protection (CBP) officer or the Immigration Court that you did not abandon your residence.
If you are absent from the U.S. for six consecutive months or more, you risk losing your green card when you try to reenter the U.S. This is especially true when you have multiple, prolonged absences or when you have received prior warnings from a CBP officer at the port of entry.
2. Make sure your visits abroad are fixed and temporary and that you return to the U.S., as your permanent home, for extended periods
Coming back to the U.S. before you hit the six to 12-month mark of being absent is not a surefire way to preserve your residence. The length of time abroad is not the only factor to consider.
When your trips abroad (particularly to your home country) are frequent, you run the risk of being subject to scrutiny by the CBP each time you seek re-entry. Regular, extended trips outside the U.S., followed by relatively short stays, will cause CBP to doubt whether your true residence is in the U.S. The CBP may question you about your travel patterns, employment history and other factors to determine if you just return to the U.S. to hang on to the green card, but do not really have a permanent home in the country.
Returning to the U.S. within one year is necessary to maintain LPR status and to re-enter the U.S. without a reentry permit. But such a return is not always enough to show that you did not abandon your residence.
Following a trip abroad, a permanent resident must be returning to an unrelinquished residence in the U.S. In Matter of Kane, the Board of Immigration Appeals found that a Jamaican citizen abandoned her LPR status when she spent 11 months of every year living in her native country and returned to the U.S. for one month every year.
LPR status is granted to those who intend to make the U.S. their permanent home. When you leave the U.S. with the intent of making another country your true home, you in effect abandon your U.S. residency.
The purpose of your leaving the U.S. must be temporary; your visit abroad must have a fixed timeline; and you must intend to return to the U.S. as a place of permanent employment or as an actual home.
A visit abroad of any length will be considered temporary and fixed if it will end on a certain date (e.g. temporary placement abroad by your U.S. employer; “round the world” travel; professional training; attendance at school; sabbatical) or when a certain event takes place (e.g. travel to care for a sick relative; travel to liquidate assets or business abroad; travel for a work project with a clear end date).
Be prepared to show proof that you intended to return to your U.S. residence, especially if your trip abroad lasted six months or more.
3. Maintain your ties to the U.S.
Any absences from the U.S. – even if is less than one year – may be considered in deciding whether you abandoned your residence. Permanent residents must maintain family, employment, financial and property ties in the U.S. and have documentation to prove these ties.
Proof that you did not abandon your U.S. residency includes:
- Evidence of your filing U.S. income tax returns for the past year(s).
- A valid U.S. based driver’s license
- The name and address of your U.S. employer and evidence that it paid your salary.
- Evidence of ownership or leasing of property, such as a home, in the U.S.
- Evidence of ownership of assets, such as a bank account, in the U.S.
- Evidence of immediate family members, such as a U.S. citizen child or spouse, in the U.S.
- Evidence of registration or attendance at a U.S. school.
- Evidence of professional affiliations or club memberships in the U.S.
4. Minimize your ties to your native country or to a third country
If you maintain strong ties to another country and stay there frequently or for extended periods, you could be found to have abandoned your U.S. residence, based on the totality of the circumstances.
Avoid actions that strengthen your ties overseas, such as extended visits to family members in your home country; owning property in your home country; working abroad for a foreign employer; being self-employed or running a business in your home country; voting in foreign elections; running for political office in a foreign country; and failing to file your U.S. income tax returns or filing them as a non-resident alien.
5. Get a reentry permit or a returning resident visa for admission to the U.S. following a long absence
Your green card becomes technically invalid for reentry into the U.S. if your trip abroad lasted one year or more. While your green card can be used for reentry following an absence of less than one year, you may be treated as seeking admission to the U.S. if you were gone for six months or more.
A reentry permit is a must-have for permanent residents who plan to stay outside the U.S. for one year or more, but want to keep their U.S. residency. A reentry permit is also recommended when each stay abroad lasts less than one year, but the permanent resident travels frequently and spends considerable time outside the U.S.
To get a re-entry permit, you must file a Form I-131, Application for Travel Document, with USCIS and complete the biometrics (photo and fingerprinting) before you depart the U.S. If you leave the U.S. while the application is still pending, you may request USCIS to send the reentry permit to you through a U.S. Consulate or USCIS office overseas.
A re-entry permit helps to show you did not intend to abandon your status. It also permits you to apply for admission to the U.S. following an absence of up to 2 years without needing a Returning Resident (SB-1) immigrant visa.
If you did not apply for a re-entry permit before you left the U.S for a period lasting one year or more, you should apply for a Returning Resident visa at the U.S. Consulate. The consular officer will grant the visa if he finds that you departed the U.S. with the intent of returning to an unrelinquished U.S. residence, and your stay abroad was for reasons beyond your control and for which you were not responsible.
With a re-entry permit, you may not be found to have abandoned your residence based only on the length of time spent abroad. The re-entry permit, however, does not guarantee retention of LPR status or prevent a finding of LPR abandonment. You may still be found to have abandoned your residency based on other relevant factors, such as weak ties in the U.S. and strong ties overseas.
6. Be prepared to explain the temporary purpose of your trip abroad and avoid signing a Form I-407 at the port of entry
Following any trips abroad, permanent residents need to present a valid green card to the CBP officer at the U.S. port of entry. Based on travel history, employment ties, etc., the CBP may find that a permanent resident is really living outside the U.S. and has abandoned his U.S. residency.
If the CBP believes you abandoned your LPR status, they can take steps to have it officially revoked or cancelled. The officer may give you an opportunity to withdraw your application for admission or grant you Deferred Inspection.
If you wish to keep your U.S. residency, it’s better to avoid withdrawing your request for re-entry. Instead, explain the temporary purpose of your trip abroad and the compelling circumstances that led you to stay overseas as you did.
If the CBP still believes you abandoned your residency, it may confiscate your green card, defer your inspection, and issue a parole document temporarily allowing you into the U.S. on the condition that you report to them at a scheduled date with proper documentation proving you reside in the U.S. Being paroled into the U.S. and receiving Deferred Inspection is short of lawful admission as a permanent resident.
At your Deferred Inspection appointment, the CBP may agree that you reside in the U.S. and give you back your green card. But if it finds you do not maintain a permanent home in the U.S., you may be detained in the custody of U.S. Immigration & Customs Enforcement (ICE) or released conditionally, and placed in removal proceedings before the Immigration Court.
In removal proceedings, ICE has the burden to prove by clear and convincing evidence that you abandoned your residence. An immigration judge may terminate removal proceedings and allow you to keep your green card if you prove you did not abandon your residence. If the Immigration Court finds that you abandoned your status, you may defend yourself against removal by filing a form of relief for which you qualify.
At the port of entry, the customs officer may give you a Form I-407, Record of Abandonment of Permanent Residence Status, to sign (sometimes in exchange for being admitted to the U.S. as a temporary visitor).
If you want to keep your status, do not sign the Form I-407 if one is given to you. Instead, ask for Deferred Inspection or a Notice to Appear in Removal Proceedings before the Immigration Court.
A signed Form I-407 can be used to show that you affirmatively abandoned your residence. It makes it much harder to prove that you you did not abandon your U.S. residency or did not intend to abandon it.
When Does the Question of Whether You Abandoned Your U.S. Residency Come Up?
Applying for Admission at the U.S. Port of Entry
Each time green card holders return to the U.S. from a trip overseas, CBP officers may ask questions to determine whether they abandoned their U.S. residency. Common questions include:
- Where have you been outside the U.S.?
- How long were you there?
- What were you doing there?
- Why are you coming to the U.S. now?
- What ties to the U.S. did you keep while you were away?
Filing a Naturalization Application with USCIS
When permanent residents apply to become naturalized U.S. citizens, they are asked questions about their trips abroad on the Form N-400 application. They are also asked about their current and past addresses; employers and schools; and whether they filed their federal, state or local taxes as a nonresident.
Information on the N-400 concerning where you have lived, worked, and kept ties, as well as the frequency and lengths of your trips abroad, could lead to complications. USCIS may find that you not only fail to meet the continuous residence and physical presence requirements for naturalization, but that you also abandoned your U.S. residency.
If USCIS finds that you abandoned your U.S. residency, it will deny the naturalization application and may issue a Notice to Appear in Removal Proceedings. If placed in removal proceedings before the Immigration Court, you would need to prove that you did not abandon your LPR status and defend yourself against removal.
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Consult with an experienced immigration attorney to help you determine whether your long absences from the U.S., frequent trips abroad, weak ties to the U.S., or strong ties to another country could cause problems with re-entering the U.S. or becoming a naturalized citizen.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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Photo by: Daily Sublime, Flightscape 158
