On Mar 18 2015 by Anusree Nair

Residency Requirements for Immigrants with Green Card Status

Many immigrants who acquire lawful permanent resident (“LPR” or “Green Card”) status 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, maintaining LPR status is not simple, particularly for those LPRs who are required to travel abroad for repeated or extended periods of time.

Residency Requirements for Lawful Permanent Residents

Upon each entry into the United States, an LPR must present an unexpired green card and show that he or she is returning to an unrelinquished, permanent residence after a temporary absence abroad.  Under Title 8, Section 211, of the Code of Federal Regulations, an LPR who remains outside of the U.S. for more than one year will not be able to seek re-admission into the U.S. using his or her green card.

There is a pervasive myth that if an LPR enters the U.S. once every six months for a few days or weeks at a time, then he or she will not have abandoned LPR status as there was no continuous absence of one year or more.  This is incorrect; if an LPR spends significant amounts of time outside the United States, returning only for brief visits, Customs and Border Protection (“CBP”) is likely to challenge that immigrant’s entitlement to LPR status when he or she seeks to enter the United States.  Recently, CBP Officers have raised issues when the LPR does not spend more than half of his or her time in the U.S.

The burden to establish that his or her visit abroad was temporary will be on the returning LPR.  Some factors used to determine an LPR’s intent are: (i) family ties in the U.S.; (ii) property holdings in the U.S.; (iii) whether the LPR’s job is located in the U.S. or abroad; and (iv) whether the LPR is returning to the U.S. as a place of employment or as an actual home rather than for a brief visit.

An LPR can also be considered to have abandoned LPR status if he or she fails to file taxes as a U.S. resident.  If CBP believes that the LPR has abandoned residency, the LPR may challenge abandonment during removal proceedings in front of an immigration judge.

Since LPRs who spend significant time outside of the United States may be denied entry and placed in removal proceedings, it 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, which has been applied for prior to the LPR’s departure from the United States.

Re-Entry Permits

Because a green card is only valid to return to the U.S. after a trip of less than a year, LPRs who wish to remain outside of the United States for one year or more should obtain a re-entry permit, a passport‑style travel document issued by United States Citizenship and Immigration Services (“USCIS”). Even if the LPR does not intend to be outside of the U.S. for a full year, a reentry permit is still recommended if the LPR will spend significant time outside of the U.S., e.g. more than 6 months per year.

The re-entry permit facilitates reentry for those who have spent or will spend long periods of time outside the U.S.  When an LPR re-enters on a reentry permit, CBP generally does not conduct an inquiry as to whether the LPR has abandoned permanent residence.

An LPR must file for the re-entry permit while in the United States and 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 3-8 weeks after an LPR submits the application, necessitating a second trip back to the U.S. in some cases.  However, the LPR may depart the United States after the application but before adjudication without affecting the application.

A critical issue in preparing the application for a re-entry permit is the income tax filing status claimed by the LPR prior to the re-entry permit application.  The re-entry permit application requires the applicant to confirm whether he or she 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.  USCIS may require proof of income tax filing and length of the immigrant’s total absence from the United States prior to issuing the re-entry permit.

A previously admitted immigrant who either lost his or her green card or has been outside the United States for more than 365 days, without a re-entry permit 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: (i) was previously admitted as an immigrant; (ii) had no intention of abandoning that status when he or she departed from the U.S.; and (iii) is returning to the U.S. after a temporary visit abroad or if the stay abroad was protracted, the delay was caused by reasons beyond the immigrants control.  Returning resident visas are notoriously difficult to obtain and immigrants to intend to remain abroad for one year or more should seek a re-entry permit.

Naturalization

Although the re-entry permit application protects against loss of permanent residence status, it does not preserve the continuous residence or physical presence requirements for citizenship.

Lawful Permanent Residents are eligible to apply for naturalization, to obtain U.S. citizenship, if they have been an LPR for 5 years, or for 3 years if married to and living with a U.S. citizen.  To be eligible for citizenship, the LPR must meet certain requirements including: good moral character, proficiency in English, and U.S. history and government, and certain physical presence and continuous residence requirements.  These rules for eligibility are completely independent of the rules for maintaining permanent residence status.  This article will only focus on the continuous residence and physical presence requirements for citizenship.

As mentioned above, naturalization applicants must prove that they meet the requisite physical presence and continuous residence requirements during the 3 to 5 years prior to applying for citizenship.  First, 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.  Second, any absence of 6 months or more from the U.S. during the qualifying time period breaks the continuous residence requirement regardless of whether the applicant obtained a re-entry permit.  It is important to note that the continuous residence requirement continues to apply after the filing of the naturalization application.  Therefore, the applicant must continue to maintain continuous residence until he/she becomes a U.S. citizen.

Each continuous departure of one year or more restarts the 5 or 3 year clock to apply for citizenship. Further, if the applicant was outside of the U.S. for a continuous period of six months or more, there is a rebuttable presumption that continuity of residence, for naturalization purposes, was broken.  This presumption may 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 applicant has spent one year abroad.

Immigrants 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.

Reprinted with permission from the March 18, 2015 edition of the The Legal Intelligencer© 2015 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com877-257-3382reprints@alm.com.