Seguritan US Immigration Articles

Risk of Prolonged Travel Abroad

Permanent resident status is a privilege that may be lost and/or revoked if not maintained and preserved.

Abandonment is one of the ways a noncitizen can lose his lawful permanent resident (LPR) status. It is especially important for an LPR to know what constitutes abandonment in order to protect and preserve his status.

An LPR may leave the U.S. for short temporary visits abroad at any time. This is one of the privileges of being a permanent resident. Absence of more than six months but less than a year will ordinarily not trigger an examination of his intent to abandon residence upon reentry to the U.S. In most cases, the LPR will only need to show his permanent resident card when he returns to the U.S.

The LPR should keep in mind that it is not the length of his absence that will be scrutinized; it is his intent. Therefore, even if the absence from the U.S. is less than a year, there may still be a finding of abandonment of permanent residence. Factors of possible abandonment include employment abroad; presence of immediate family members who are not permanent residents; lack of fixed address in the U.S. and frequent prolonged absence from the U.S. Declaring oneself as a nonresident on tax returns may also result in a finding of abandonment of permanent residence status.

An absence from the U.S. of more than one year is generally treated as abandonment of permanent residence. Thus, an LPR who is planning to be away from the U.S. for more than one year should apply for reentry permit by filing Form I-131. It is recommended that the LPR who frequently travels abroad obtain reentry permit which is generally valid for up to two years.

The reentry permit will serve as proof of the LPR’s intent that he is merely returning from a temporary trip abroad and therefore he did not abandon U.S. residence. However, the LPR cannot merely rely on the reentry permit to be readmitted to the U.S. Even with the reentry permit, the LPR may still be found to have abandoned his U.S. residence.

In order to establish that there was no intent to abandon permanent residence, the LPR may show evidence of employment, business or properties in the U.S., home ownership in the U.S., maintenance of U.S. bank accounts, maintaining a U.S. driver’s license and family ties in the U.S., among others.

A permanent resident may maintain his permanent residence status by obtaining a social secuirty number and renewing his permanent resident card before expiration. Filing tax returns in the U.S. is crucial even when the noncitizen is not in the United States.

Maintenance of permanent residence is important for naturalization purposes. One of the requirements in a citizenship application is continuous residence in the United States for at least 3 or 5 years. The applicant must not have, within the last 3 or 5 years, been outside of the U.S. for one year or more. Absences of less than 6 months generally do not break continuous residence, while absences of more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.

When his LPR status is challenged as having been abandoned, he has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.

Abandonment of Permanent Resident Status

For many people, obtaining a green card is the fruit of a long and arduous struggle. But once they become lawful permanent residents (LPR), they sometimes make the mistake of thinking that they can freely travel in and out of the country. Still some believe that if they wait a few more years they are already eligible to become naturalized U.S. citizens.

It is easy to forget that lawful permanent residence gives one the privilege of being able to reside in the United States on a permanent basis. It is not a legal right but a privilege that can be revoked, which is why one should be aware of the requirement to maintain that status.

Most LPRs who reside or make frequent trips outside the U.S. do so because of employment, school, business, medical reasons, or other family members’ immigration status. They must remember, however, to maintain a continuous and uninterrupted intention to return to the United States because failure to do so may result in a loss of that status through abandonment.

Having the intent is not enough and the LPR must be ready to prove it through sufficient evidence. Some of the circumstances that may demonstrate ties to the United States include home ownership, maintenance of a U.S. bank account, family ties in the U.S., employment, business or properties in the U.S., and maintaining a U.S. driver’s license.

Generally, absence from the U.S. for more than one year is considered abandonment of residence. However, the test is not the length of time spent abroad but whether the LPR intended to be abroad only temporarily.

As a rule, a visit is temporary if it is for a relatively short period which is fixed by some early event or if the LPR had a continuous uninterrupted intention to return to the U.S. during the entire time of the visit. The LPR upon re-entry may demonstrate the reasons for staying abroad by showing legal and medical records, school records, employment letter, and affidavits, as may be applicable.

A reentry permit is a travel document issued by the USCIS to those who expect to spend lengthy periods of time abroad. It is generally valid for two years. The LPR will not be deemed to have abandoned status just because of the duration of his/her stay/s abroad. However, it is still not a guarantee of admission and the LPR may be asked to give proof that there was no abandonment of residence.

Maintenance of permanent residence is also important for naturalization purposes. One of the requirements in a citizenship application is continuous residence in the United States for at least 3 or 5 years. The applicant must not have, within the last 3 or 5 years, been outside of the U.S. for one year or more. Absences less than 6 months generally do not break continuous residence, while absences more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.

With or without a re-entry permit, and regardless of the length of stay abroad, classifying oneself as a nonresident alien for tax purposes raises a rebuttable presumption that an LPR has abandoned that status. Furthermore, LPRs should not overlook the requirement of filing U.S. tax returns even while living abroad.

Still, an LPR has certain rights, including the right to due process. For instance, where his/her status is challenged as having been abandoned, the LPR has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.

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