Occasionally, a U.S. Lawful Permanent Resident (“LPR”) may choose to be absent from the United States frequently and/or for extended periods of time due to business or family demands. Frequent and/or extensive absences from the United States may cause an LPR to jeopardize the validity of his or her green card.
Prolonged Absence from the United States
Generally, if a trip abroad did not exceed a year, an LPR can present his or her green card at a port of entry to be able to return to the United States. However, if the LPR was absent from the United States for over six months or has abandoned his or her LPR status, the U.S. government will regard such foreign national as “seeking admission” to the United States. “Seeking admission” is a special term in Immigration Law. It means that to be able to enter the United States, a foreign national has to satisfy certain statutory criteria including establishing that he or she is not afflicted by a communicable disease (e.g. tuberculosis); is not a serious criminal; does not present a national security threat; is not likely to be on public assistance; etc.
Ultimately, whether one has abandoned his or her LPR status turns on a green card holder’s intent to return to the United States rather than the length of time spent abroad.
Under the Immigration and Naturalization Act (“INA”), an LPR who returns to the United States is a “special immigrant.” INA defines “special immigrant” as “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” Courts use the following test to determine whether a visit abroad was temporary. A visit is considered temporary if it was:
- for a relatively short period, fixed by some early event, or
- the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.
If the length of the visit depends on the occurrence of an event and is not fixed in time, and such event does not occur within a relatively short period of time, the U.S. government will consider the visit temporary only if the foreign national has a continuous, uninterrupted intention to return to the United States during his or her time abroad. The following is a list of factors that will be used to determine whether the green card holder’s intent to return was continuous and uninterrupted: the alien’s family ties; property holdings; business affiliations within the United States; the duration of the alien’s presence in the United States; the alien’s family, property, and business ties in the foreign country.
Preservation of LPR Status
A green card holder who has been absent from the U.S. for an extended period of time will have to establish at the port of entry that his or her definitive intent to return to the United States is corroborated by extensive ties to this country (e.g. real estate ownership in the United States, payment of taxes, presence of family members in the United States, and employment). One worst-case scenario is that the foreign national will be issued a Notice to Appear in immigration court, where he or she will have to establish LPR status before an immigration judge.
Viability of Re-entry Permits
A re-entry permit can be issued for a period of two years. The application has to be filed in the United States, and the applicant has to be fingerprinted before he or she leaves the United States. If the LPR departs from the U.S. before he or she is fingerprinted, the U.S. Citizenship & Immigration Services (“CIS”) may consider the application abandoned. The LPR, however, does not need to wait in the U.S. until the application is approved.
It is a common misconception that the re-entry permit will completely immunize a foreign national from losing their LPR status. The re-entry permit only prevents a Customs and Border Patrol (“CBP”) official from finding abandonment of LPR status relying solely on the duration of absence while the permit is valid. A CBP official may still investigate a lengthy absence to find out whether the foreign national’s activities (e.g. crimes) make him or her inadmissible.
Although the re-entry permit is not a guarantee against CBP’s finding the abandonment of LPR status, it strongly indicates the foreign national’s intent to return to the U.S. on a permanent basis.
Tax Implications for LPRs
Failure to file a tax return as an LPR or filing a tax return as a non-resident can have an adverse impact on LPR status and the possibility of acquiring U.S. citizenship (naturalization). Even if an LPR does not have income in the United States but has earnings abroad, he or she is required to report income on a U.S. tax return as a resident to avoid negative immigration consequences.
When contemplating lengthy or frequent trips abroad, LPRs should be aware that the re-entry permit is not a guarantee against losing LPR status because of frequent absences from the United States. Ultimately, it is the LPR’s intent to return to the United States, as evidenced by the ties to this country, and not the length of a trip overseas that will determine whether or not a green card holder has abandoned his or her lawful permanent resident status.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.