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Your Green Card Is at Risk if You Stay Outside U.S. Over 6 Months

A lawful permanent resident (LPR) who stays outside of the U.S. for 6 months or more per year risks losing his or her green card when trying to reenter the U.S. This is especially true after multiple prolonged absences or after a prior warning by a U.S. Customs and Border Protection (CBP) officer at the airport.

There are many legitimate reasons a green card holder may need to be abroad temporarily, such as if you need to care for an ill family member, take a temporary job abroad, study abroad, or liquidate assets like a business or real estate abroad.

Still, CBP officers at the airport are allowed to question green card holders about whether they have given up (abandoned) their LPR status. The officer will ask questions such as:

  • Where have you been outside the U.S.?
  • For how long?
  • What were you doing there?
  • Why are you coming to the U.S. now?
  • What ties did you keep to the U.S. during your absence?

CBP officers have access to computer records showing your prior entries and exits from the U.S.

If it appears you have abandoned your LPR status and you’re not willing to voluntarily give it up, the CBP officer may refer you to Immigration Court for a judge to make the final decision.

The most conservative strategy to avoid abandonment is to keep the U.S. as your main home, reducing your absences accordingly–in other words, sleeping more nights in the U.S. than elsewhere. This may not be practical for everybody. If you’re going to have more extensive absences from the U.S., you should consider documenting the temporary purpose of your absence and your continued ties to the U.S. An additional strategy to consider is applying for a "reentry permit" before leaving the U.S.

The Judicial Definition of "Temporary"

There are many myths about how long an LPR can stay abroad. The real rule is that an LPR who makes trips abroad that are not "temporary" loses that status. Unfortunately, there is no specific time limit for what "temporary" means. Here’s the most concise definition of temporary, from the U.S. Court of Appeals for the Ninth Circuit:

we hold that a permanent resident returns from a "temporary visit abroad" only when (a) the permanent resident’s visit is for "a period relatively short, fixed by some early event," or (b) the permanent resident’s visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a "temporary visit abroad" only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit.

Is There a "Return Every 6 Months" Rule"?

Yes and no. There is a 6-month rule of a sort: It says that an LPRs returning from abroad doesn’t even count applying to CBP for "admission" if he or she meets the following requirements (among others):

  • he or she has been abroad for under 180 days;
  • he or she has not abandoned LPR status by making a trip abroad that isn’t "temporary"; and
  • he or she hasn’t committed certain crimes.

This rule tells CBP when an LPR can return to the U.S. without being subject to investigation as to whether he or she meets the requirements for "admission" (although CBP can still investigate whether the person is subject to deportation).

My point here is that being abroad for under 6 months (actually 180 days) is one of the requirements but is not enough–the trips abroad must still fall within the judicial definition of "temporary." The clearest example is the "touchdown" situation: somebody who lives abroad but who briefly "touches down" in the U.S. once every 5 months for vacation. This person has abandoned LPR status so will not be readmitted as an LPR, despite keeping every trip abroad under 6 months.

Some Pointers for Keeping Trips Abroad "Temporary"

Since the judicial definition of "temporary" is nebulous, here are some guidelines for avoiding abandonment of LPR status:

  • Being abroad for over 180 days is one (but not the only) way to invite the CBP officer’s scrutiny as to whether you’ve abandoned LPR status.
  • The safest way to avoid abandonment is to ensure that each year you are in the U.S. more than any single other country. For example, if you are in the U.S. 6 months a year, in France 4 months a year, and in Singapore 2 months a year, it is clear that your main home is in the U.S. (Your time in the U.S. doesn’t have to be continuous). This is the basic rule. It comes from the Immigration and Nationality Act’s definition of "residence," which means one’s "place of general abode" or, in other words, one’s "principal, actual dwelling place in fact."
  • If you can’t do that, then you should to document with clear evidence that your stays abroad are for a clear, temporary purpose and that you have retained ties to the U.S. that–in comparison to your ties abroad–evidence your intent to return to live here once your temporary stay abroad is over.
  • If an LPR has been outside the U.S. more than one year straight, his or her green card (Form I-551, Permanent Resident Card) is not valid to reenter the U.S. In this situation, three options include: (a) present a valid reentry permit (discussed below); (b) apply at a U.S. Consulate abroad for an SB-1 Returning Resident Visa (http://travel.state.gov/visa/immigrants/info/info_1333.html) by convincing the consular officer that the stay abroad was temporary and its extension past one year was beyond your control; and (c) apply to a CBP officer at the port of entry for a "waiver" of the green card requirement by proving that the stay abroad was temporary and that there was "good cause" for not returning within one year.

Using USCIS Form I-131 to Apply for A Reentry Permit

Our firm often advises clients to apply for a reentry permit if either (a) they are likely to be abroad for one year or more straight, or (b) they are likely to be abroad for more than 6 months straight for two or more years in a row.

The Form I-131, Application for Travel Document, available from U.S. Citizenship and Immigration Services (USCIS) is deceptively simple.

A reentry permit can be approved for a period of up to two years. Unlike the green card, which is valid for return after an absence of up to one year, the reentry permit is valid for up to two years. This is still no guarantee that you will be able to reenter the U.S., however. The reason is that you also have to prove to the CBP officer in the airport you haven’t abandoned your LPR status. If you have in fact been abroad for the same temporary purpose described in your reentry permit application, then it will be presumed that your trip abroad was temporary and you can be readmitted. If, however, your stay abroad was for a different purpose, than you can be referred to a judge to determine whether you’ve abandoned your LPR status. Many clients reported that they have been aggressively questioned by CBP officers in the airport on this point.

Upon reading the I-131 instructions carefully, many green card holders decide to hire an experienced American immigration attorney to prepare the I-131 application for them because the stakes are so high they do not want to risk a denial.

A few key points:

  • The I-131 must be submitted and received by USCIS while you are still in the U.S.
  • You must remain in the U.S. until your biometrics (fingerprints) appointment (http://lawandborder.com/?p=1840) in connection with the I-131, or you must return to the U.S. for that appointment.
  • In some but not all cases it can be helpful to submit with the I-131 evidence that your stay abroad will be temporary and that you will maintain ties to the U.S. during that stay abroad.
  • To reenter the U.S. with the reentry permit, be prepared to show evidence that your stay abroad was consistent with the purpose stated in the I-131, and be prepared to show that you maintained ties to the U.S.

For more, see our law firm’s Guide to Reentry Permits (http://lawandborder.com/?p=1266).

Proving Ties to the U.S. Outweigh Ties Abroad

If you’ve been abroad for a prolonged period, the CBP officer will recognize that period as "temporary" only if you’ve maintained a "continuous uninterrupted intention to return" to the U.S. during the entirety of your stay abroad. Since it’s hard for the officer to determine what’s been in your mind, the officer will consider the strength of your ties in the U.S. versus your ties abroad to see if the ties are strong enough to infer that you’ve planned throughout to return to the U.S. For example:

  • Where do you own or rent property?
  • If you own or rent property in the U.S., do you have access to it and are your belongings in it, or have you rented it out to somebody else?
  • Where do you work or go to school?
  • Where do your close relatives live?
  • Where do you keep your key assets (e.g., bank accounts, credit card accounts, cars, insurance)?
  • Do you file income taxes each year in the U.S.?
  • Do you have a valid U.S. driver’s license?
  • Have you studied English while abroad?

Continue Reading at Your Green Card Is at Risk if You Stay Outside U.S. Over 6 Months (http://lawandborder.com/?p=2355)

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