Aliens who have been granted lawful permanent resident status must be careful not to accidentally lose their status through abandonment. When lawful permanent residents return to the United States after traveling abroad, they are actually applying for admission as an immigrant. This may seem strange since they have already been lawfully admitted and given status in the U.S., but this is the law.
The Immigration and Nationality Act, Section 101(a)(20), defines “lawfully admitted for permanent residence”, as the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant. In order for greencard holders to be admitted as a returning immigrant after traveling outside the United States they must be returning from a “temporary” visit abroad [INA Section 101(a)(27)(A)].
What constitutes a “temporary” visit? It depends on the facts of each case. One significant immigration case, Matter of Huang, 19 I&N Dec. 749 (BIA 1988), the BIA held that the intention of the alien will control and that temporary is not defined solely in terms of a lapse in time.
How does an immigration examiner or immigration judge ascertain what the alien’s intentions were? That determination will involve an examination of such elements as 1) the purpose for departing, 2) whether the trip abroad was expected to terminate within a relatively short period, 3) where the alien was employed and has a home, and 4) the location of the alien’s family. The Ninth Circuit Court of Appeals found that one critical consideration is whether the evidence demonstrates that the alien had “a continuous, uninterrupted intention to return to the United States during the entirety of his or her visit” [Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986)].
When traveling abroad, lawful permanent residents should be careful to not remain out of the country more than six months at one time. Absence of six months up to 364 days may raise a presumption of an intent to abandon residency. Absences of one year or more may break residency resulting in a loss of permanent resident status. If a trip requires an absence of one year or more – for school, a job, or family emergency – it is imperative that an application for a reentry permit be made before leaving the country. A reentry permit serves as a valid entry document for absences of more than one year, but less than two. Permanent Resident Aliens can not obtain a valid re-entry visa after departing from the United States. One must apply prior to departing. The issue of long absences may be revisited at the time of naturalization. Naturalization generally requires five years as a permanent resident. Even with a re-entry permit an absence of more than 365 days will require a new waiting period of approximately four more years to be naturalized.
By: Attys. Robert L. Reeves and Juliana L. Butler