By Attorneys Robert L. Reeves and Delia L. Franco
The beloved green card has arrived after a long and arduous struggle. The lawful permanent resident can remain in that status or wait the requisite time period and apply for United States citizenship. However, if the legal permanent resident does not meet certain responsibilities or violates particular obligations required by the immigration laws of the United States, one can be denied naturalization or, worse yet, be placed in removal proceedings.
A mistaken belief is that one can travel for long periods of time with a green card as long as the stay does not exceed more than one year. But the law in this area is much more complex.
A lawful permanent resident may travel abroad as long as her intentions to reside in the United States remain unchanged. A green card entitles a person to live permanently in the United States. In turn, the government expects that the person will reside here by having a permanent home, employment and other roots in the United States.
A problem ensues when a greencard holder attempts to return after an absence from the United States of more than six months since this raises a rebuttable presumption that one intends to abandon permanent resident status. Although an extended absence alone may not be enough to revoke the residency, it is one crucial factor the government considers in charging a person with abandonment.
If the BCBP officer has any indication that a non-citizen has abandoned residency, the officer may conduct an investigation at the U.S. port of entry for the purpose of collecting additional evidence to prove abandonment. The alien will be given an opportunity to give up his greencard and return home. If he chooses that avenue, he will no longer have status in the United States. The alien may also choose to fight to retain his lawful permanent resident status. If he elects that choice, the greencard holder will then be taken to secondary inspection to be questioned in more detail by an immigration officer. The alien may refuse to discuss the matter without an attorney present. This is important because any statements made by the alien during this investigation can be used by DHS to support the abandonment claim in immigration court. The alien can contest the charges of abandonment through legal argument and presentation of documentary evidence and oral testimony.
A re-entry permit should be obtained if the greencard holders believes that he will have to be out of the United States for any length of time. The greencard holder should apply for a re-entry before leaving the United States. It is valid for two years. It provides evidence that the greencard holder did not intend to abandon his permanent resident status. However, the re-entry permit is not conclusive proof of non-abandonment.
In addition, an extended absence may affect citizenship eligibility even with a re-entry permit. Since physical presence in the United States is a requirement for naturalization, time spent outside the United States may affect eligibility for citizenship.
One should investigate the impact of absence from the United States before traveling abroad for any extended period of time.