Green Card Holder’s Guide to Travel, Residing Abroad and Preventing Loss of Permanent Residence
April 1, 2009
For immigrants who have successfully navigated the long and often complicated immigrant process, acquiring the status of lawful permanent resident (“LPR” or “Green Card” status) is an extremely significant event. Many who have achieved this goal believe that as long as they pay their U.S. taxes as a resident, do not break any laws and spend at least some time each year in this country, they cannot lose their LPR status. Unfortunately, retaining one’s LPR status is not quite so simple, particularly for those LPRs who are required to travel abroad for repeated or extended periods of time.
I. Returning to the United States in LPR Status
A. Permanent Residents Have Rights
When permanent residents return after a trip abroad, it is important for them to understand their rights. The most important of these rights is the right to a hearing before an immigration judge if their permanent resident status is questioned by the immigration inspector.
Most visitors and other nonimmigrants have no right to a hearing, and immigration inspectors have been known to try and encourage permanent residents to sign an abandonment of their green cards instead of requesting such a hearing. Once a person signs an abandonment, their permanent resident status is gone and very difficult (in fact, normally impossible) to recover.
Returning permanent residents, therefore, should be familiar with the rules governing that status as set forth in this paper, and if their entitlement to that status is questioned, they should present the evidence outlined here. If it is not accepted by the immigration inspector, they should politely request a hearing on the question.
B. Establishing the Right to Reenter the United States
In order to be readmitted to the United States, an LPR is required to show that he or she acquired LPR status in accordance with the immigration law, that he or she has retained that status from the time that it was acquired and that he or she is “returning to an unrelinquished lawful permanent residence after a temporary visit abroad.”
Any LPR who returns to the United States after an absence may be questioned regarding whether he or she has abandoned or relinquished his or her LPR status even though he or she presents a specified valid entry document. Presenting a “green card” to the Customs and Border Protection (“CBP”) Inspector at the port of entry after an absence of less than a year provides no assurance that the LPR will be readmitted to the United States, for while the green card satisfies the requirement of presenting a valid entry document, its presentation is not evidence that the LPR is “returning from a temporary visit abroad.” Thus, the burden is on the returning LPR to establish that his or her visit abroad was intended to be “temporary” and that his or her actions have been consistent with that intention. The types of questions that are relevant in determining an LPR’s intent to retain 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 he or she maintained LPR status. In assessing the likelihood that CBP will readmit an LPR in that status, it is also important to consider his or her pattern of travel over the years since obtaining LPR status. If an LPR spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round-trip tickets both originating and terminating in a foreign country, CBP is likely to challenge that immigrant’s entitlement to LPR status at the time he or she seeks to enter the United States, particularly if those trips are to vacation or resort destinations.
In light of the possibility that a returning LPR might be denied entry and placed in removal proceedings if deemed to have abandoned permanent residence, it clearly is advisable to have proof that, at the time of departure, no abandonment of LPR status was intended. The best form of proof of this intention is a re-entry permit, discussed below, applied for prior to the LPR’s departure from the United States.
C. Entry Documents for Returning LPRs
A returning LPR must present either a re-entry permit or another valid entry document specified by regulation. These include a valid, unexpired immigrant visa; a valid, unexpired Form I-551, Permanent Resident (or “Green”) Card; a Returning Resident Visa; a valid, unexpired Form I-327, Permit to Re‑enter the United States (a “re‑entry permit”); or a valid, unexpired Form I-517, Refugee Travel Document, endorsed to show LPR status.
The requirement of a valid entry document may only be waived if there is “good cause” for the failure to present the required document or at the discretion of DHS. Use of these documents is explained below.
1. Immigrant Visa
An immigrant visa is a foil sticker adhered to an individual’s passport by a United States Consulate overseas. 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. Once used for the initial admission, however, that immigrant visa cannot be re-issued; the immigrant would have to be sponsored for a new immigrant visa (which will often require significant time and expense - up to several years or even decades, in some family-based immigrant categories) if he or she was determined to have abandoned permanent resident status.
2. “Green Card”
An immigrant who has been outside of the United States for less than 365 days may use his or 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 he or she 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.
3. “Returning Resident” Visa
A previously admitted immigrant who has lost his or 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 he or she was admitted as an immigrant and that he or she had no intention of abandoning that status. The Consulate may require extensive documentation of the immigrant’s ties to the United States, particularly where the immigrant has been abroad for a lengthy period of time before taking steps to return to the United States.
4. Re-entry Permit
A re-entry permit is a passport‑style travel document issued by United States Citizenship and Immigration Services (“USCIS”). It establishes that, at the time of an immigrant’s departure from the United States, 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 United States at the time of the application. The immigrant may depart the United States after the application is filed but before a decision is made without affecting the application, and a re-entry permit may be sent to a United States Consulate or Embassy or an overseas office of USCIS, if so requested by the applicant. An initial re-entry permit will be issued to allow return to the United States within two years from the date of issuance. If, however, an immigrant has been absent from the United States 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 and any subsequent re-entry permits will be valid for only one year each.
A critical issue in preparing the application for a re-entry permit is the income tax filing status claimed by the alien prior to the re-entry permit application. The re-entry permit application form (Form I-131) asks whether 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. If the applicant has claimed nonresident status, the re-entry permit may be denied on the ground that the alien has abandoned his or her LPR status. The DHS may require proof of income tax filing and of other indicia of the temporary duration of the immigrant’s absence from the United States prior to issuing the re-entry permit.
A re-entry permit cannot be extended by an LPR from outside the United States. An immigrant must return to the United States, at least briefly, and apply for a new re-entry permit before departing, since an applicant for a re-entry permit is required to be physically present in the United States until the application is “filed” with the Nebraska Service Center (“NSC”) of the USCIS. Thus, an applicant should take into account both mailing time and the time it takes for NSC to accept the application and fee when determining when it is safe to depart the United States. The NSC has been known to request the airline tickets used by the applicant to depart the United States, in order to determine whether he or she was in the United States at the time the application was received by NSC, prior to issuing the new re‑entry permit.
In addition, a re-entry permit applicant must appear in-person at a USCIS Application Support Center in order for the applicant’s photographs and fingerprints to be captured electronically and the applicant’s identity to be verified. This “biometrics” appointment will typically be scheduled some weeks or even months after an applicant submits the application, necessitating a second trip back to the U.S. in some cases. While the biometrics appointment can normally be rescheduled if travel is not convenient, multiple reschedulings may lead to denial of the application.
As mentioned earlier, if an LPR is outside of the United States for more than four of the five years preceding the re-entry permit application, he or she can only obtain a re-entry permit valid for one year, with limited exceptions (exceptions include aliens traveling pursuant to government orders, employees of the American University of Beirut, employees of public international organizations of which the U.S. is a member, and professional athletes regularly competing in the United States and worldwide).
II. Tax Considerations
Permanent residents, even those living abroad temporarily, should be aware of the tax requirements imposed by U.S. tax law on permanent residents. The IRS Publication 519, “Tax Guide for Aliens,” is a good source of information, as is a tax professional such as an accountant with experience in international income tax compliance.
As a general matter, permanent residents remain obliged to file U.S. tax returns while living abroad, in the same way as U.S. citizens. Various rules may limit or even eliminate any amount of tax owed, but the return must be filed. Failure to file a return may result in a double whammy: Under the immigration laws, failure to file the return will result in a DHS determination of loss of permanent resident status, while loss of permanent residence status may result in a tax penalty for the permanent resident, particularly for high-earning or high net worth permanent residents.
Because the income, estate, and other tax obligations of permanent residents can become quite complicated when they move abroad, both tax and immigration counsel should be sought before leaving the U.S. for a protracted period.
III. Naturalization Application
Four years and nine months after obtaining permanent residence status (two years and nine months for foreign nationals married to and living with a U.S. citizen), the foreign national can apply for naturalization in order to become a citizen of the U.S. The grant of citizenship cannot be made until the applicant has been a permanent resident for five (or three) years. Travel issues are critical for this process, and the rules are completely independent of, and separate from, the rules for maintaining permanent residence status.
Naturalization applicants must prove that they maintained permanent residence in the United States for the required period of five (or three) years. Naturalization applicants must also prove that they have never had a continuous period of one year or more outside of the United States since becoming a permanent resident (whether or not a re-entry permit was obtained). A continuous period of six months or more outside of the United States raises a presumption of discontinuance of residence for naturalization purposes, but this presumption can usually be rebutted by evidence of an intention to maintain residence in the U.S. In very limited circumstances, including employment overseas under U.S. government contract or with an American company engaged in foreign commerce, the foreign national can apply to the DHS to preserve U.S. residence even for an absence greater than one year; however, this application can only be made if the applicant was physically present in the U.S. for one continuous year after obtaining permanent residence and it must be filed before the person has spent one year abroad.
In addition to proving five (or three) years’ residence, the naturalization applicant must prove that he or she has been physically present in the United States for at least one half of the days during the qualifying time period. Although the re-entry permit application protects against loss of permanent residence status, it has no impact whatsoever on the naturalization process. Therefore, irrespective of the reasons for being outside of the United States, if the individual cannot prove that he/she meets the physical presence requirement, the individual cannot be naturalized. Finally, the naturalization applicant must prove residence in the state in which he or she is applying for at least three months. This requirement is not a physical presence requirement and can be met even if the applicant is presently living outside of the U.S.
Persons who have successfully obtained LPR status must be aware of the rules relating to the loss of that status, including loss through abandonment. LPRs 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 United States. Finally, LPRs should be sure to file United States income tax returns each year that they earn income, whether or not from sources in the United States, so that their tax compliance documents their intention to maintain permanent resident status.