Impermanent Residence: Understanding and Avoiding the Abandonment of Permanent Resident Status

Many "lawful permanent residents" of the U.S. take great comfort in having obtained permanent status in the United States, and likewise believe that as long as they pay their taxes, abide by the law, and stay in the U.S. at least part of every year, they can retain their "green card" status indefinitely. Barring the commission of certain crimes, fraud, and other circumstances, lawful permanent residents are entitled to live and work in the U.S. indefinitely, and to travel in and out of the U.S. However, as its title suggests, the status of lawful permanent residence presumes "permanent residence" and domicile in the United States. All too often, on a return trip to the U.S., a border official will make a finding that permanent residence has been abandoned by virtue of a person's extended absence from the U.S. and/or the loss of employment, property, and other ties.

The Role of Intent Regarding Absence from the US

Whether or not permanent resident status has been abandoned is a question of a person's intent. However, status can be lost involuntarily and U.S. Customs and Border Protection (CBP) officers will not simply accept a foreign national's statements of intent regarding absences from the U.S. They will inquire into the particular circumstances and the relevant, objective evidence. Fortunately, there are steps that permanent residents can take to protect themselves—for example, by documenting their intent and maintaining ties to the U.S., by returning periodically to the U.S. when abroad for extended periods, and by obtaining re-entry permit documentation in advance of lengthy absences.

Unrelinquished Permanent Residence?

The operative question for border officials is whether a permanent resident is returning to an "unrelinquished permanent residence" in the U.S. after a "temporary visit abroad." Officials will first consider the length of the absence. If a permanent resident has been out of the U.S. for more than one year, CBP takes the position that status has been abandoned, and a returning resident is entitled to review of this determination, with a high burden of proof for U.S. officials to demonstrate abandonment. An absence of more than six months but less than a year may also lead to scrutiny at the border. Certainly, CBP may find abandonment based on an absence of less than one year, and will further look to the purpose of a person's departure and the existence of a fixed end point for the visit. CBP will also consider whether the person's permanent home and employment are in the U.S., as well as family ties, financial ties, property ownership, the filing of income tax returns, and other objective evidence. It is also important to note that brief return-trips to the U.S. do not definitively protect against abandonment.

Planning Ahead: Re-Entry Permits and Returning Resident Visas

One strategy for permanent residents planning an extended temporary absence from the U.S. is to apply for a re-entry permit in advance of departing. This document is a must if the absence will be longer than one year. Technically, the document prevents CBP from finding abandonment of resident status solely based on the length of the absence. Practically speaking, regardless of the expected length of the absence, a re-entry permit (including the act of applying for one prior to departure) is one of the best ways that a permanent resident can express his or her intent to maintain permanent residence.

For permanent residents who have been outside the U.S. for more than one year, it is also possible to apply to a U.S. Consulate for a "returning resident" visa, which requires substantial documentation of ongoing ties to the U.S. and the intent to maintain residence.

Obtain US Citizenship

The ultimate proactive step that a permanent resident can take to preserve the ability to return to the U.S. following absences abroad is to acquire U.S. citizenship status through the process of naturalization. It is important to consider how the acquisition of U.S. citizenship certificate may affect a person's foreign citizenship status, but one advantage of U.S. citizenship/naturalization is that it essentially cannot be lost (except based on voluntary renunciation, fraud in obtaining citizenship, or commission of certain acts of treason or subversion). In fact, it is also important to remember that, among other naturalization eligibility requirements, a single absence of more than six months from the U.S. is generally considered to interrupt the three- or five-year period of continuous U.S. residence that is required for naturalization, and a permanent resident must generally be physically present in the U.S. for at least half of the required three- or five-year period.

Remember Permanent Residency is not Always Permanent

In conclusion, permanent residents should remember that their status can be lost, and that trips out of the U.S. require careful planning and consideration of the issues surrounding the maintenance-abandonment framework. Anyone contemplating lengthy or repeated absences from the U.S.—or with general questions regarding maintenance of status or eligibility for naturalization—should obtain legal counsel regarding the appropriate steps.

by Marcus B. Jaynes

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