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Preserving Permanent Resident Status

Summary

From time to time, Lawful Permanent Residents (LPR) of the U.S. choose to reside abroad for extended periods of time. Extended family demands, business needs, corporate transfers, and other factors may cause a U.S. permanent resident to take up temporary residence outside of the U.S.

This outline focuses on three issues: (1) the impact on U.S. Immigration status of a LPR's decision to reside abroad; (2) important factors in establishing one's on-going entitlement to LPR status; and (3) considerations in preserving "residence" for U.S. naturalization purposes with reference to the naturalization law's "physical presence" requirement.

Lawful Permanent Resident Status

Lawful Permanent Resident status is defined as:

the status of having been lawfully accorded the privilege of residing in the U.S. as an immigrant in accordance with the immigration laws, such status not having changed.

This status gives a foreign national several important privileges:

  • to remain in the U.S. indefinitely;
  • to work in this country almost without restriction;
  • to return to the U.S. after a temporary absence abroad; and
  • to establish a permanent residence in the U.S.

Merely discontinuing one's physical residence in the U.S. does not automatically result in the loss of permanent resident status. Abandoning residence is not a ground of inadmissibility or removal, nor does it result in an LPR's automatic loss of her or his "Green Card". Rather, the issue presents itself in terms of:

  • what is the LPR's intent in leaving the U.S.; and
  • what documents are needed both to establish the LPR's intent and entitlement to re-enter the U.S.

U.S. immigration law requires every foreign national seeking to enter the U.S. to possess and to present a U.S. Visa. However, a returning LPR is exempted from having to present an Immigrant Visa and may, instead, present his or her Permanent Resident Card (commonly referred to as a "Green Card" — though the laminated card has not been green since the 1960's). The use of the Green Card as a re-entry document is restricted to an immigrant foreign national returning to an unrelinquished lawful permanent residence in the U.S. after a temporary absence abroad, that does not exceed one year.. The term "residence" can mean something less than a permanent dwelling place in the U.S.

Preserving LPR Status

Whether or not one is returning to a "residence" in the U.S. from a "temporary absence abroad" depends in part on the following factors:

    Purpose for Departing

    Specific reasons for leaving the States, such as education, professional training, employment for a definite, and limited (even if extended) period of time — particularly for one's U.S. employer — would suggest a temporary departure;

    Termination Date

    A visit abroad would be deemed temporary if it is expected to end within a period relatively short, fixed by some early event..." Prolongation of a visit abroad would not alter the temporary character of the visit, if caused by unforeseen events.

    Place of Employment or Actual Home

    The LPR must intend to return to the U.S., to live or to work, and must maintain this intention during the course of his or her extended visit abroad. The location of such ties as family and property is also important.

    What these factors emphasize is the importance of identifying an "event" that will cause the visit abroad to end. For instance, a professor who travels abroad for a one-year sabbatical and who must return to the U.S. to resume his or her teaching duties by the start of the next academic year can point to an event (the new academic year) causing the visit abroad to end. A business executive who takes a three-year overseas assignment can identify the conclusion of the assignment as the event resulting in the end of the foreign visit.

    The administrative agencies and federal courts which have examined this issue have considered other factors that shed light on one's true intent in going abroad. These factors include:

    Income Tax Status

    Whether the foreign national continues to treat himself as a resident for federal income tax purposes. Internal Revenue Service Publication 519 cautions that the IRS and the Citizenship and Immigration Service regard failure to file an income tax return as a U.S. resident, or filing an income tax return as a non-resident alien, or claiming other tax benefits as a non-resident alien, to be inconsistent with LPR status for immigration purposes;

    Ties to the U.S.

    Such ties as bank accounts, charge accounts, U.S. Driver's License, club and religious organization memberships, as opposed to the existence of such contacts abroad, often are indicative of one's intent to return to the U.S;

    Furniture

    Whether the foreign national's furniture has been placed in storage, sold, or shipped abroad can shed light on one's future plans;

    Mail

    Whether mail is delivered to the foreign national's U.S. address for subsequent forwarding or whether postal authorities are notified of a change of address sometimes is important; and

    The Nature of Statements

    That the foreign national may have made statements to friends, business colleagues, etc. regarding intentions to return to the U.S., is also pertinent.

As is apparent from the above listing of considerations, no one factor determines whether an LPR has abandoned his or her lawful permanent resident status. Instead, the Government looks at a pattern of behavior.

Reentry Permits

An LPR may be eligible to apply to the CIS for a "Reentry Permit." Such permits may be issued to LPRs who establish their intention — prior to departing the U.S. for an extended visit abroad — to return to their unrelinquished domicile in the U.S. upon completion of their visit abroad. Application is made on CIS Form I-131 (Application for Travel Document) which must be submitted to the appropriate CIS service center while the LPR is physically present in the U.S. The reentry permit is useful for two reasons. First, it permits the LPR to be absent from the U.S. for up to two years. (Without a reentry permit, permanent residence is almost always lost or abandoned after an absence of one continuous year.) Second, it helps to establish the LPR's intent — at the time of initial departure from the U.S. — to return to his or her permanent home in the U.S.

Residence and Physical Presence for Naturalization

U.S. Naturalization laws require, among other things, that an LPR satisfy both "residence" and "physical presence" conditions. Residence and physical presence are not the same.

Residence

The law requires that a Naturalization Applicant who gained permanent residence via the Employment-based process has been an LPR for at least five years before filing a Petition for Naturalization. Absence from the U.S. for a continuous period of one year or more breaks the continuity of "residence" necessary for naturalization.

In some limited instances where a foreign national will be abroad for employment, this interruption sometimes may be avoided so that the period abroad can actually be counted toward the five-year residence requirement.

To be eligible for these extended-absence benefits, an LPR must meet all of the following conditions:
  • be physically present and residing in the U.S. as an LPR for an uninterrupted period of one year before his or her absence; and
  • be employed by (i) the U.S. Government, or (ii) American Research Institution recognized by the CIS, or (iii) an American corporation engaged in foreign trade and commerce of the U.S., or (iv) a subsidiary of such a corporation, or (v) a public international organization of which the U.S. is a member; and
  • request extended absence benefits before absent from the U.S. for one year; and
  • prove that the absence is in furtherance of his or her overseas employment.

Such an application (CIS Form N-470) is submitted to the CIS and (in the case of employment by an American firm) must be accompanied by an affidavit from the LPR's employer describing the nature of its business, its relationship with the overseas employer of the LPR, the facts of the LPR's overseas employment, and the nature of the foreign trade and development. If the CIS approves the application, the LPR's absence from the U.S. is not treated as an absence. More importantly, the extended absence will not interfere with the LPR's ability to satisfy the two requirements (residence and physical presence) for naturalization.

Physical Presence

"Physical Presence," in contrast to "residence," is precisely what the term implies: being present physically in the U.S. To qualify for naturalization, the LPR must also have been physically present on U.S. soil for periods of time totaling at least one-half of the five-year residence period, i.e., two and one-half years. The physical presence criterion cannot be met constructively. The LPR must demonstrate that he or she has been physically present in the U.S. for at least 30 months of the five-year period immediately preceding the filing of a Naturalization Petition.

Conclusion

U.S. law always places the burden of proof squarely on the shoulders of the foreign national seeking the immigration benefit. As immigration lawyers realize, the ease with which an LPR can lose a Green Card is inversely proportional to the difficulty in obtaining the status in the first place. For these reasons alone, careful planning is essential for an LPR who plans an extended absence from the U.S.

 

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