Absence from the U.S. and abandonment of Permanent Residence
According to INA §101(a)(20) the term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant […]. However, although “Lawful Permanent Resident” status sounds….permanent, it is not. Indeed, Permanent or Conditional Residents (LPRs – or Green Card holders) maintain Permanent Residence until they become U.S. Citizens or until they lose it. Among the reasons for losing Permanent Residence is “abandonment.” There are different ways to abandon Permanent Residence, such as:
- Voluntary relinquishment of LPR status;
- Moving to another country, intending to live there permanently;
- Failing to file income tax returns while living outside of the U.S. or identifying oneself as a non-resident on tax returns; or
- Remaining outside of the U.S. for an extended period of time, unless the absence was meant to be a temporary one.
Numbers are not determinative
As far as remaining outside of the U.S. for an extended period of time, numbers are not determinative and there is no set formula as to how much time abroad equals abandonment. Some believe that brief visits to the U.S. every six months or every year will allow them to keep their Green Card while others believe that if they spend more than six months outside the U.S. they will automatically lose it. Neither is true. Although absences from six months to one year bring suspicion of abandonment and absences of more than 12 months raise a presumption of abandonment, what really matters is the LPR’s intent to reside in the U.S. rather than the length of time abroad.
Remaining outside of the U.S. for more than 6 months but for less than 1 year
Absences of longer than 6 months but less than one year raise a rebuttable presumption that an LPR does not intend to reside in the United States permanently. Under INA §101(a)(13)(C)(ii) returning LPRs shall not be regarded as seeking admission into the U.S. unless they have been absent for a continuous period of more than 180 days. In other words, staying outside of the U.S. for over 6 months will invite Customs and Border Protection (CBP) Officers at the port of entry to question whether the LPR has abandoned Permanent Residence in the U.S. Officers may require the LPR to prove that he or she did not intend to abandon LPR status by showing fixed ties to the U.S. (i.e. filing of income tax returns, the presence of family members, employment, property ownership, bank accounts or business affiliations in the U.S.) If the LPR provides sufficient evidence of intent to permanently reside in the U.S. the Officer may admit the LPR without further questioning. However, if the LPR does not convince the Officer that he or she maintained Permanent Residence, one of the following things may happen:
- The Officer may question the LPR in a separate office (the so-called “secondary inspection”);
- The Officer may admit the LPR but refer him or her to a later appointment with CBP for further investigations;
- The Officer may admit the LPR but issue a Notice to Appear (or NTA) for removal proceedings and refer the LPR to Immigration Court. Since a CBP Officer cannot make the determination of whether Permanent Residence has been abandoned or not, it will be up to the Immigration Judge to make such a determination. Notably, once the LPR is in removal proceedings, the Department of Homeland Security (DHS) has the burden to prove by clear, unequivocal, and convincing evidence (a fairly high evidentiary standard) that the LPR abandoned Permanent Residence;
- The Officer may confiscate the green card, deny entry to the LPR and force him or her to leave the U.S.; or
- The Officer may give the LPR the option to sign a Form I-407 (Record of Abandonment of Permanent Residence Status), usually in exchange for being admitted as a visitor. However, by signing an I-407 the LPR will voluntarily abandon his or her LPR status. Therefore, it is generally advisable to be placed in removal proceedings and be afforded the opportunity to explain to the Judge why one should keep Permanent Residence.
Remaining outside of the U.S. for more than one year
Absences from the U.S. for one year or more face an even greater amount of scrutiny because under INA §211.1 a LPR who is outside the U.S. for more than a year will not be able to re-enter using the Green Card alone. In other words, after an absence of 1 year a Green Card becomes technically invalid for re-entry into the U.S. and the LPR will be denied admission with only the Green Card. In such case, the LPR might need another Visa or travel documents, such as:
- A Re-entry Permit, which is a travel document (applied for prior to departure) that allows a Conditional or Permanent Resident to apply for admission to the U.S. upon returning from abroad without needing a Returning Resident Visa (even though there is no guarantee of admission);
- A Returning Resident (or SB-1) Visa, which is a Visa available to LPRs who remained outside the U.S. beyond the travel validity of their Green Card, which is one year, or their Re-entry Permit – which is usually two years, due to circumstances beyond their control; or
- Another Visa.
Please note: it may happen that a Green Card holder that has been absent for more than one year from the U.S. may still be “let in” by the Officer at the port of entry. However, an entry as a LPR does not “fix” the abandonment concerns (i.e. waive a possible finding of abandonment). It is indeed possible that some time (even years!) after the entry the U.S. government may make a determination that the Green Card had been abandoned and may place the alien in removal proceedings.
How is a determination of abandonment made?
As already mentioned, the six-months and the one-year rules may not mean much. When determining whether Permanent Residence was abandoned, the time spent abroad is just one of the many factors. Rather, the essence of the analysis is the actual intent of the LPR. In other words, Officers and Immigration Judges will mostly look at whether or not the LPR intended to permanently return to the U.S. after a “temporary visit abroad.”
What is a “temporary visit abroad”?
As explained, there is no clear cut answer and the law does not specify a particular period of absence. The Board of Immigration Appeals (BIA) and the District and Circuit Courts have defined a “temporary visit abroad” many times, but the most widely used definition is the one given by the U.S. Court of Appeals for the Ninth Circuit: “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.”
Basically, the visit is “temporary” if it’s short, limited to an event that should occur within a short period of time or, if the event doesn’t happen within said short period, if the LPR has a continuous, uninterrupted intention to return to the U.S. (as a LPR) after the visit.
Again, whether LPR status has been abandoned remains an “intrinsically fact-specific question” and each situation requires an inquiry into the intentions and conduct of the LPR.
How can a LPR prove his or her intent to maintain Permanent Residence in the U.S.?
There are several factors that Officers and Judges look at when determining whether or not a LPR had the “continuous, uninterrupted intention to maintain Permanent Residence” in the U.S. Some of these factors are:
- Duration of the trip abroad
- Expected termination date for the trip abroad;
- Definite and specific purpose for the temporary absence;
- Presence of family members in the U.S.;
- Employment or professional affiliations in the U.S.;
- Affiliation to Clubs, organizations or other meaningful community ties in the U.S.;
- Ownership of property and assets in the U.S. (real estate, bank accounts, etc.);
- Whether or not the LPR applied for a Re-entry Permit prior to departing from the U.S.;
- Other factors, such as a U.S. driver’s license, U.S. based credit cards, clothes, furniture, cars or boats in the U.S., and so on.
Each situation is evaluated on its own, and all factors are weighed and considered. However, the analysis need not be limited to these factors alone, and no one factor is necessarily more important than the others.
Abandonment of Permanent Residence and Naturalization
Prolonged absences from the U.S. may also be an issue when applying for naturalization. Naturalization applicants must provide USCIS with dates for all their trips outside the U.S. since becoming LPRs. However, disruption of continuous residence in the U.S. for naturalization eligibility is a different issue than abandonment of Permanent Residence, has different rules and requirements and is outside of the scope of this post.
Exception for Border Commuters
An exception to some of the rules of abandonment exists for Green Card holders who commute from Mexico or Canada to work in the U.S. on a daily or seasonal basis. This exception is referred to as “Commuter Status” or “Alien Commuter Status” exception and is outside of the scope of this post.
- The most conservative strategy to maintain a Green Card when traveling abroad is always to keep the visits short and to keep the U.S. as the main “home” – in other words, to spend more time of the year in the U.S. than elsewhere;
- If the LPR anticipates the absence to be longer than 6 months, it is advisable that he or she obtain a Re-entry Permit. Although it does not preserve LPR status or guarantee readmission to the U.S., a Re-entry Permit serves as a valid entry document after absences of more than one year and helps show intent to maintain Permanent Residence in the U.S.;
- The LPR should be prepared to prove the purpose of the trip abroad, that the trip was expected to terminate within a short, fixed period and that unforeseeable circumstances delayed the return to the U.S.;
- The LPR should be prepared to show evidence of substantial ties to the U.S. – a home, a job, meaningful family ties, assets and so on, to prove continuous, uninterrupted intention to return to the U.S.;
- The LPR should minimize ties to his or her home country;
- The LPR should fly to the U.S. with a one-way ticket;
- The LPR should pay U.S. taxes as a Resident Alien (instead of Non-Resident Alien);
- The LPR should avoid signing a Form I-407, which serves as evidence that the LPR affirmatively relinquished (or intended to relinquish) Permanent Residence;
- The LPR should consider Applying for Naturalization prior to traveling abroad for a long period of time;
- If the LPR is applying for a SB-1 Visa, he or she should be prepared to prove that failure to return to the U.S. within one year (or within the period of validity of a Re-entry Permit) is due to circumstances beyond his or her control.
However, prolonged absences from the U.S. may have serious consequences, and each case is unique. Therefore, no blog post, article, written, oral or online material should substitute a competent attorney’s advice on the case.