Permanent Resident’s Guide to Travel and Preventing Loss of Permanent Residence
As an immigration lawyer, I see too many people who do not take care to protect their permanent residence (“green card") status after USCIS grants permanent resident status. Permanent resident status is not permanent, especially if one travels abroad for extended periods of time.
1. Returning to the United States in Permanent Resident Status After travel abroad one must be readmitted to the U.S. at a port of entry. By law the Customs and Border Protection (CBP) Officer is to establish that the foreign national: acquired LPR status in accordance with the immigration law; has retained, and not abandoned, LPR status since the time it was granted; and, is “returning to an un-relinquished lawful permanent residence after a temporary visit abroad." Every returning LPR may be questioned on the issue of abandonment of LPR status, even though s/he presents a valid entry document.
Presenting your “green card" or Permanent Resident Card to the CBP Inspector after an absence of less than one year is no assurance that a lawful permanent resident (LPR) will be readmitted to the United States. The permanent resident card is a valid re-entry document; it is not evidence that one is returning from a “temporary visit abroad."
Returning LPR’s have the burden to establish the absence from the U.S. was intended to be temporary, and his/her actions were consistent with the intention of a temporary absence. Returning permanent residents have the burden of establishing their intention to remain, and not abandon, LPR status.
Relevant indicia of the LPR’s intention to maintain LPR status include:
- Are the location of the immigrant’s family ties, property holdings and job primarily in the United States, rather than abroad?
- Is the LPR returning to the United States as a place of employment or business or as an actual home, rather than for a brief visit?
- Did the immigrant depart from the United States for a specific, short-term activity, rather than for employment or residence outside the United States of indefinite duration?
- Can the LPR be expected to return to the United States from abroad within a relatively short period of time?
- Can the date of the immigrant’s return to the United States be fixed by some early event, such as the termination of an overseas assignment, the immigration of a relative or the disposition of assets outside the United States?
- Did the immigrant file United States income tax returns as a “resident" taxpayer, regardless of whether any tax was owed, assuming the immigrant earned money (either inside or outside the United States) while absent? (Filing an income tax return as a nonresident taxpayer, claiming nonresident tax treaty benefits or failing to file a U.S. tax return are inconsistent with an intention to maintain lawful permanent resident status).
The more of these questions that can be answered affirmatively by the returning LPR, the more likely it is that CBP will consider that s/he maintained LPR status.
Contrary to mistaken popular belief among many LPRs, extensive travel abroad with brief return visits to the U.S. is not sufficient to maintain LPR status. I have seen too many LPRs come to me for help after spending most of their time abroad with brief “touchdown" trips back to the U.S. In these circumstances, CBP particularly scrutinizes brief annual return visits to the U.S. on tickets both originating and terminating in a foreign country, especially if those trips are to vacation or resort destinations.
If CBP considers the LPR has abandoned permanent resident status the LPR can be placed into removal proceedings.
The best form of proof that an LPR did not intend to abandon permanent resident status is a USCIS-issued Re-Entry Permit, applied for prior to departure.
2. Valid Entry Documents for LPRs Valid entry documents for returning LPRs include:
- Valid, unexpired Immigrant Visa. An immigrant visa is a foil sticker affixed into a passport by a U.S. Consulate. It allows a person to travel to the United States and seek admission as an immigrant while it is valid. Once a person has immigrated and been admitted as a permanent resident, it will be endorsed to serve as temporary evidence of permanent resident status, but after use for the initial admission, however, that immigrant visa cannot be re-issued; the immigrant would have to be sponsored for a new immigrant visa if s/he or she was determined to have abandoned permanent resident status.
- Valid, unexpired Form I-551, “Permanent Resident Card." An immigrant who has been outside of the U.S. for less than 365 days may use his/her Permanent Resident Card in the place of the required immigrant visa. Presentation of the card, though, does not guarantee admission; indeed, an immigrant returning from multiple trips abroad may be questioned as to whether s/he is maintaining a residence in the United States and may be required to present documentation of a residence in the United States, as noted above.
- Returning Resident Visa. A previously admitted immigrant who has lost his/her Permanent Resident Card, or who has been outside the United States for more than 365 days, can apply to a U.S. Consulate or Embassy for a special type of immigrant visa, known as a “returning resident" visa. In order to obtain the visa, the immigrant will have to prove to the Consulate that s/he as admitted as an immigrant and that s/he had no intention of abandoning that status. The Consulate may require extensive documentation of the immigrant’s ties to the U.S., particularly where the immigrant has been abroad for a lengthy period of time before taking steps to return to U.S.
- Valid, unexpired Form I-327, “Permit to Re-enter the United States" (a “re-entry permit"). A re-entry permit is a passport-style travel document issued by USCIS, and establishes that, at the time of an immigrant’s departure from the U.S., no abandonment of LPR status was intended. An LPR may apply for such a permit to re-enter the United States, stating the length of his or her intended absence or absences and the reasons for them, as long as the LPR is in the U.S. at the time of the application. USCIS may request the airline tickets used by the applicant to depart the United States, in order to determine whether s/he was in the U.S. at the time the application was received at USCIS, prior to issuing the new re-entry permit.?The Applicant also must attend a Biometrics Appointment after USCIS receives?the Application; Biometrics can only be completed in the U.S. An initial re-entry permit is valid for two years. If, however, an immigrant has been absent from the U.S. for more than four out of the five years preceding the re-entry permit application, the re-entry permit will be valid for only one year. An LPR may apply for subsequent re-entry permits, but they are valid only for one year. USCIS may require proof of income tax filing and of other indicia of the temporary duration of the immigrant’s absence from the U.S. prior to issuing the re-entry permit.?If the applicant has ever filed a U.S. tax return as a nonresident, or has ever failed to file a U.S. tax return on the basis of nonresident status, the re-entry permit may be denied on the ground that the alien has abandoned LPR status.
3. Permanent Residents Have Rights A returning LPR has the right to appear before an Immigration Judge if his/her status is questioned by a CBP Officer. If your status is questioned on abandonment, please do not sign a document offered by CBP indicating you abandoned LPR status. Once a person signs an abandonment, their permanent resident status is gone and normally impossible to recover.
4. Tax Considerations for LPRs All permanent residents remain obliged to file U.S. tax returns while living abroad, in the same way as U.S. citizens; the amount of tax owed may vary, but the tax return must be filed. Failure to file the tax return will result in USCIS determination of loss of LPR status.
5. Conclusion Permanent Residents who travel must be sure they have proper documentation to allow them to return to the United States. Those who are contemplating repeated absences from the United States, or a single absence of long duration, should seek legal counsel on the best means to preserve their right to return to the U.S. LPRs should be sure to file U.S. income tax returns each year that they earn income, whether or not from sources in the U.S., so that their tax compliance documents their intention to maintain permanent resident status.