By Attorneys Robert L. Reeves and Jeremiah Johnson
Summer is here and for many that means vacations and family trips. However, for lawful permanent residents (green card holders) extra planning is needed for traveling outside the United States. One particular issue that can affect a lawful permanent resident’s status is the length of time they are outside the United States. But how long is too long? The answer, like most answers to immigration questions, can be somewhat complicated and is very fact dependent.
First, it is important to note that a returning lawful permanent resident is not seeking admission into the U.S. for purposes of immigration law unless he or she has 1) abandoned or relinquished that status; 2) been absent from the U.S. for a continuous period in excess of 180 days; 3) engaged in illegal activity after having departed the U.S.; 4) departed from the U.S. while under removal proceedings; 5) ever committed certain criminal offenses (unless they have already been granted a waiver); or 6) is attempting to enter at place other than a normal port of entry. So if a legal permanent resident is planning a trip for less than six months, and does not have any past criminal record, he or she can generally travel without too much concern that their immigration status could be in jeopardy. But sometimes, trips outside the U.S. last longer than six months. Then what?
If a lawful permanent resident is out of the U.S. continuously for more than six months but less than a year, the Department of Homeland Security (DHS) will look at a number of factors before admitting the returning lawful permanent resident. If the resident has been outside the U.S. for longer than one year, DHS takes the position that residency has been abandoned. But DHS’s position is not always correct. The real question is not how many days the lawful permanent resident spent outside the U.S., but rather whether the trip was temporary. Under immigration law, a temporary visit is fixed by some event or will end upon the occurrence of an event having reasonable possibility of concurring within a relatively short period of time. For example, taking care of a sick relative could be considered a temporary visit that could last more than six months or a year. If the event does not occur within a relatively short period of time, the visit will still be considered temporary if the lawful permanent resident has a continuous uninterrupted intention to return to the U.S. during the entire visit. Criteria to determine whether a trip is temporary include the lawful permanent resident’s purpose of departure; the existence of some fixed termination of visit abroad; and the objective intent to continue to permanently reside in the U.S., evidenced by family ties, job, income tax returns, club memberships, mortgages, etc.
If DHS decides a lawful permanent resident has abandoned their residency, he or she will physically be allowed to enter the U.S. to challenge that finding in immigration court. DHS has the burden to establish by “clear unequivocal and convincing evidence” that the lawful permanent resident has abandoned her status. DHS is represented by a trial attorney, and the lawful permanent resident has the right to obtain their own counsel as well. During the course of the abandonment proceedings, the lawful permanent resident can work and travel until the immigration judge rules on the case.
Fortunately there are things a lawful permanent resident can do to protect their status while traveling. If a lawful permanent resident needs to be outside the U.S. for over a year in order to finish school, work abroad, care for an ailing relative, or any other of a number of reasons, the resident should consider obtaining a re-entry permit, so as to minimize the chances of abandonment. Residents may use re-entry permits to seek to re-enter the United States if they have been absent for one year or more. This travel document must be applied for before leaving the United States, and is usually granted for a validity period of two years.
Re-entry permit holders are still subject to inspection at the port of entry and may be denied admission if they are inadmissible. While possession of a re-entry permit travel document evidences intent to reside in the U.S., it does not guarantee admission into the U.S. The resident should also have a legitimate reason and supporting documentation for any departure from the U.S. for over six months.
While a re-entry permit travel document requires forethought and planning prior to leaving the U.S., the reality of life is such that not all lawful permanent residents can predict their travel plans. As such, a resident sometimes leaves the U.S. believing that he or she will return within 6 months or one year, but circumstances force his or her to alter plans. In such instances, the resident may be eligible for a special immigrant returning resident (SB-1) visa, which is issued at U.S. consular offices abroad. Issuance of the returning resident visa is contingent on showing that the resident maintains the intent to reside in the U.S., and that the cause of the protracted stay out of the U.S. was beyond the control of the resident. The resident must also show that she is eligible for the immigrant visa in all other respects.
Consular officers are reluctant to issue the returning resident visas. If a returning resident visa is refused on the grounds that a resident has given up her residence in the U.S., she may have to apply for an immigrant visa on the same basis by which she immigrated originally, if circumstances permit.
Because of the complicated issues involved, if you are a lawful permanent resident and are planning a trip abroad, are currently outside the United States or DHS is claiming that you already abandoned your residency, you should seek the advice of a trusted and experienced immigration attorney.