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On the first day of class, my immigration law professor provided us with a copy of a Form I-551 (better known as a “Green Card”) belonging to one of his clients. He accurately dubbed the document as the “Holy Grail” of immigration practice.
Some immigrant visa categories date back years or even decades. It is therefore vital to know the rules and responsibilities of having lawful permanent resident (LPR) status so that it can be retained and repeating a lengthy, daunting process can be avoided.
A U.S. permanent resident can lose his or her status based on either criminal violations or by abandonment. Although the analysis of whether an alien will lose status based on a conviction is full of its own interesting nuances, rare is the occasion where a client will ask which laws he or she may break and still remain in the Immigration Services’ good graces. On the other hand, one of the most common questions immigration lawyers field is how to avoid abandonment of status when a permanent resident plans to spend an extended period of time abroad.
Findings of abandonment are rarely the product of one’s own volition. Rather, each time a permanent resident returns to the U.S. and claims the right to admission, the immigration inspector must determine, per the language of the regulations, whether the immigrant is “returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad.” In order for an immigrant to be so considered, he or she must demonstrate more than a mere desire to retain permanent resident status. The immigrant must demonstrate the intention that a visit abroad was “temporary,” coupled with evidence that his or her actions are consistent with such intent. The question commonly asked is: “How much time can I spend abroad and not lose my status?” While the government’s practices provide some guideposts, the answer cannot be stated in precise terms.
The question of intent
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), establishing that a permanent resident absent for less than 180 days is generally not considered to be “seeking admission,” but one absent for more than 180 days is considered to be “seeking admission.” Application of IIRAIRA has been misunderstood by both Customs and Border Patrol (CBP) officers and immigrants themselves. IIRAIRA did not establish a rule stating that those wishing to retain their status must return to the U.S. once every six months. Rather, whether abroad for 10 hours or 10 years, all returning permanent residents are required to present a document authorizing admission and may be subject to questions regarding their intent. The types of questions relevant in determining intent to retain permanent resident status include:
- Are the locations of the immigrant’s family ties, property holdings and job primarily in the U.S., rather than abroad?
- Is the immigrant returning to the U.S. as a place of employment or business or as an actual home, rather than for a brief visit?
- Did the immigrant depart from the U.S. for a specific, short-term activity, rather than for employment or residence outside the U.S. of indefinite duration?
- Can the immigrant be expected to return to the U.S. from abroad within a relatively short period of time?
- Can the date of the immigrant’s return to the U.S. be fixed by some event, such as the termination of an overseas assignment, the immigration of a relative or the disposition of assets outside the U.S.?
- Did the immigrant file U.S. income tax returns as a “resident” taxpayer, regardless of whether any tax was owed, assuming the immigrant earned money (either inside or outside the U.S.) while absent?
The more of these questions that can be answered affirmatively by the returning permanent resident, the more likely it is that CBP will consider that he or she maintained status. But time spent abroad is of primary relevance. Following IIRAIRA, CBP officers are more likely to challenge and intent if the permanent resident is abroad for six months or more at any given time.
Residing abroad but visiting the U.S. provides no loophole to the requirement of intent to reside here. If a permanent resident spends significant amounts of time abroad over the course of several years — even if briefly returning every few months — an officer is likely to challenge entitlement to LPR status at the time of re-entry. This practice is gambling away one’s Holy Grail with CBP. While some immigrants that are actually residing abroad might get lucky from time to time, they would be wise to remember that the house always comes out ahead in the long run.
Knowledge of one’s rights is essential when residency intent is called into question. CBP officers do not give Miranda-style disclosure. On the contrary, a favorite tactic is to ask the returning immigrant to sign forms admitting waiver of permanent residence in exchange for a single admission as a nonimmigrant visitor. Rarely does a client have counsel’s BlackBerry on speed-dial and therefore permanent residents need to be cautioned against signing anything. One of the rights a permanent resident holds is opportunity for a full hearing on the merits before an immigration judge. Saving adjudication for another day allows one to obtain counsel and develop evidence in an effort to rebut allegations of waiver in front of a neutral arbiter.
Re-entry Permit: Asking for permission, not forgiveness
While the government’s practices dealing with Green Card abandonment may seem severe, they are not so severe that they are invariably imposed. Indeed, there are perfectly valid reasons for being abroad for more than six months, such as taking care of a sick loved one or taking a temporary foreign assignment as part of one’s U.S. employment. Avoiding a finding of abandonment while traveling abroad for an extended period of time, however, is a matter of asking for permission instead of forgiveness. Permanent residents are able to apply for a Form I-327 Permit to Re-enter the United States (a “re-entry permit”). A re-entry permit is a document that establishes that at the time of an immigrant’s departure from the U.S., he or she did not intend to abandon LPR status.
A permanent resident may apply for such a permit by stating the length of intended absence or absences and the corresponding reasons. The issuance of an initial re-entry permit allows return to the U.S. within two years from the date of issuance. However, if an immigrant has been absent from the U.S. for more than four out of the five years preceding application, USCIS will issue a re-entry permit valid for only one year. Subsequent re-entry permits are generally valid for one year each.
The timing of applying for a re-entry permit needs to be carefully considered. A permanent resident must be physically within the U.S. at the time of application. He or she may depart after the application is filed, but before a decision is made, without affecting outcome because an approved permit may be sent to a U.S. consulate or embassy overseas. However, the applicant must appear in-person at a USCIS Application Support Center in order for his or her identity to be verified and photographs and fingerprints to be captured electronically. This biometrics appointment will typically be scheduled weeks or months after an applicant submits the application. If the applicant is already abroad, this often results in an otherwise unnecessary trip back to the U.S. with little or no time to plan.
Issues of taxation are also to be considered. Permanent residents living abroad generally must file U.S. tax returns, even if no taxes are likely to be owed. Failure to file a return will result in the Department of Homeland Security determination revoking status. Permanent residents should file tax returns as a “resident” each year; filing as “nonresident” could jeopardize ability to retain LPR status as one has effectively evidenced intent to abandon status.
Naturalize, Naturalize, Naturalize
Of course, concerns relating to abandonment of status are mooted when an alien is naturalized as an American citizen. This is because U.S. citizens are the only demographic guaranteed admission, regardless of time spent abroad or subjective intent of where to reside. Moreover, U.S. citizens retain their citizenship in spite of virtually all types of criminal convictions. Generally, one can only lose citizenship if he or she voluntarily relinquishes it abroad or is denaturalized in the rare case the government determines fraud in the procurement of citizenship.
Although the nuances in securing citizenship deserve their own article, the process is as follows: four years and nine months after obtaining permanent resident status (or two years and nine months for permanent residents married to and living with a U.S. citizen), one may apply for naturalization. Citizenship cannot be granted until the applicant has been a permanent resident for five (or in the case of marriage to a U.S. citizen, three) years. One must also demonstrate good moral character, and pass an English and civics/history test.
Travel issues are critical for this process, and the rules are completely independent of the rules for maintaining LPR status. Naturalization applicants must prove that they have never had a continuous period of one year or more outside of the U.S. since becoming a permanent resident, whether or not a re-entry permit was obtained, or else the five (or three) year clock begins anew. A continuous period of six months or more outside of the U.S. raises a presumption of discontinuance of residence for naturalization purposes. However, this presumption can usually be rebutted by evidence of an intention to maintain U.S. residence. Naturalization applicants must prove physical presence in the U.S. for at least one half of the days during the qualifying time period.
Conclusion
Obtaining the “Holy Grail” of immigration law is often a difficult, lengthy process. Those lucky enough to obtain LPR status must be aware of the rules relating to the loss of that status, including abandonment. Permanent residents contemplating repeated absences from the U.S., or a single absence of long duration, should seek legal counsel on the best means to preserve their right to return. Finally, permanent residents should be sure to file U.S. income tax returns each year, regardless of source of income, so that their tax compliance documents an intention to maintain LPR status.
Reprinted with permission of The Legal Intelligencer.
