On Nov 15 2007
Maintaining Permanent Resident Status
For immigrants who have successfully navigated the long and often complicated immigrant process, acquiring the status of lawful permanent resident (“LPR 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 one week 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. The Current Legal Framework
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) established a uniform system of “removal” proceedings and replaced the concept of “entry” with the concept of “admission.” Where the definition of “entry” focused on the “coming of the alien into the United States,” the definition of “admission” and “admitted” focuses on the lawfulness of the entry “after inspection and authorization by an immigration officer.” A returning LPR under IIRAIRA is not regarded as “seeking admission” when arriving from abroad unless he or she: (1) has abandoned or relinquished that status; (2) has been absent from the United States for a continuous period in excess of 180 days; (3) has engaged in illegal activity after having departed the United States; (4) has departed from the United States while under legal process seeking his or her removal from the United States; (5) has committed certain criminal offenses and has not been granted relief from those offenses; or (6) enters or attempts to enter without inspection by an immigration officer. This provision of IIRAIRA has been viewed by many as creating a rule that persons may retain their LPR status by simply returning to the United States once every six months. Unfortunately, this is not the case. A returning LPR is always an “arriving alien” subject to inspection and may still be challenged by an Immigration Officer at the port of entry on the ground that he or she has abandoned his or her LPR status, even if he or she has been absent from the United States for less than 180 continuous days. If the returning LPR is thought to have abandoned his or her lawful permanent residence, no matter what the length of the absence, he or she may be charged by the Immigration Officer with inadmissibility as an intending immigrant without a valid immigrant visa. The Immigration and Nationality Act (INA) provides that all arriving aliens inadmissible for lack of proper immigrant or nonimmigrant entry documents, or who are seeking or have sought admission by fraud or a material misrepresentation, are subject to removal from the United States under the expedited removal process. However, the Department of Homeland Security (DHS) has provided that the expedited removal procedure may not be used where a check of DHS data systems verifies that an arriving alien has been admitted for lawful permanent residence, and that the alien’s LPR status has not been terminated in exclusion, deportation or removal proceedings. If an alien’s claim to returning LPR status cannot be verified by the Service, the inspecting officer must issue an expedited removal order and refer the alien to an immigration judge solely for the purpose of providing the individual with an opportunity to establish his or her prior admission as an LPR. The alien must be detained during this procedure. If the immigration judge determines that the alien has never been admitted as an LPR, the expedited removal order will be affirmed. There is no appeal from this decision. If, however, the immigration judge determines that the alien was once admitted as an LPR and that the LPR status has not been terminated by final administrative action, the immigration judge must vacate the expedited removal order.
B. Entry Documents for Returning LPRs
In order to qualify as a “returning resident,” 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.” In that connection, a returning LPR must present either a re-entry permit or another valid entry document specified by regulation. They include a valid, unexpired immigrant visa; a valid, unexpired Form I-551, Alien Registration Receipt Card known as a “green card” (if seeking readmission after a temporary absence of less than one year, except for certain crewmen of U.S. registry vessels); 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-571, 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 package of documentation issued by a United States Consulate overseas that allows a person to travel to the United States and seek admission as an immigrant. Once a person has immigrated and been admitted as a permanent resident, that immigrant visa has been used and 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 green 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.
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 document that 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 the DHS, 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, albeit 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 DHS. 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. 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).
As discussed above, 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 other than a re-entry permit. Presenting a “green card” to the DHS 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 controlling 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? 1 (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 the DHS will consider that he or she maintained LPR status. In assessing the likelihood that DHS 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, DHS 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 above, applied for prior to the LPR’s departure from the United States.
II. 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 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.