Abandonment of Permanent Resident Status:

How to Keep Your Green Card

Lawful permanent resident (LPR) status permits an alien to remain in the United States indefinitely, work, and sponsor other family members to come here. LPR status is one of the main goals of people coming to the United States. Although the U.S. Citizenship and Immigration Service (USCIS) issues an Alien Registration Card (also known as a “green card” even though they are mostly off-white) to document LPR status, the green card does not assure re-entry into the United States. The courts have held that every time a permanent resident seeks to come back into the United States after being abroad, the immigration inspection officer can question the immigrant about whether LPR status has been abandoned. Therefore, it is extremely important for permanent residents to assess their immigration situation before embarking on an extended visit outside the United States.

There is no clear rule on when exactly LPR status has been abandoned. USCIS looks to what it calls the “totality of the circumstances” to see whether the green card holder still intends to live in the United States permanently. The more documentation of intent to remain in the U.S. that can be shown to the inspecting officer, the better.

How Long Can I Be Absent From the U.S.?

Leaving the United States for less than six months is usually not a problem. An absence of six to 12 months triggers heightened USCIS scrutiny, and an absence of more than 12 months leads to a “rebuttable presumption” that LPR status has been abandoned. If you intend to stay abroad for more than six months, be prepared to show proof that you plan to live in the United States permanently.

A temporary absence of any length will generally be excused if it will end on a certain date or when a certain event takes place. Examples include:

1. Absence ends on a certain date:

a. Temporary placement abroad by your company

b. “Round the world” travel

c. Sabbatical

2. Absence ends when a certain event takes place:

a. Travel to care for a sick relative

b. Travel to liquidate assets abroad

c. Travel for a research project with clear goal

What Proof of Intent to Live in the U.S. Permanently Will USCIS Accept?

Once again, USCIS will look to the “totality of the circumstances.” Many LPR holders believe that simply owning property in the U.S. and visiting once a year will maintain their status. However, many of those people work and have a home in another country. Those people may be seen to have abandoned their LPR status.

Keep in mind that every bit of evidence counts. USCIS will consider family ties in the U.S., property, assets in U.S., accounts, professional affiliations or club memberships, tax returns (filed as resident alien), frequency of travel abroad, ties to another country, and any other evidence of intent to live in the U.S. permanently.

Can I “pre-apply” for reentry if I know I will be outside the U.S. for a long time?

Yes. You can apply for a “Reentry Permit” (Form I-131) by mail through the USCIS Nebraska Service Center. If you are planning to be outside the U.S. for an extended period of time, the Reentry Permit will avoid difficult questions at the border as you try to come back into the United States. The application for the permit must be carefully documented, and must show a clear date when you plan to return. Please note that you may still be questioned at the airport about your long term intent to live in the United States, even if you have a re-entry permit. Be prepared to explain your plans for living in the US after your temporary absence if asked.

Applications for Reentry Permits are now taking over 4 months, and MUST be filed while you are still in the U.S., so plan ahead. You should also realize that extended absences can interrupt the continuous presence needed to apply for citizenship later – that fact is not changed by receiving a re-entry permit.

How should I file my taxes?

We do not provide tax advice, but in general lawful permanent residents should be filing their federal tax returns as US residents. If you are not, or if you are considering living outside the US, or keeping any assets in another country now, or in the future or abandoning your permanent residence status, we strongly suggest you consult with an accountant or tax attorney. There can be significant penalties for filing taxes or maintaining bank accounts in violation of your status. We recommend this firm for quality, cost effective tax advice, and for a tax professional with experience in international issues, we recommend Clayton Cartwright.

Other Recommendations:

1.    LPRs should complete a new I-9 form for their employer.

2.    Your green card only affects your status in the United States. If you are planning to travel in or pass through other countries, please check with the relevant Embassy or Consulate to determine visa requirements for your nationality. For example, green card holders from India require a visa even to travel through certain European countries.

3.    LPRs planning to travel abroad for an extended period of time should apply early for a Reentry Permit and/or carry with them strong documentation of intent to live in the United States permanently.

4.    LPRs should file their federal tax returns as US residents, unless otherwise directed to do so by a qualified tax professional.

5.    All LPRs should consider applying for U.S. citizenship when they become eligible. New federal laws say that even LPRs cannot get federal jobs unless they apply for citizenship as soon as they are eligible. Also, once the LPR has a U.S. passport, there are no restrictions on length of absence from the United States. Keep in mind though that some countries do not allow dual citizenship. Therefore, becoming a U.S. citizen may mean having to abandon your citizenship abroad. Please see http://curranberger.com/visa-info/other-immigration-issues/citizenship-naturalization.

6.    All male family members (between the ages of 18 and 25) are required to register with the United States Selective Service before their 26th birthday. Please refer to the U.S. Selective Service website for more information.

7.    It is your responsibility to contact the immigration service whenever you change addresses in the future until you become a U.S. Citizen. THIS IS VERY IMPORTANT. You may report your change of address on-line.