By Attorneys Robert L. Reeves and Flomy J. Diza
After years of waiting to immigrate, a person who finally obtains lawful permanent residence may have family concerns or other business that either does not allow him to immediately enter the United States (US) or requires that he leave the US for an extended period of time. This is a problem because a green card is a permanent resident visa. It is given to someone on condition that he permanently resides in the US. If the alien does not live here, he is in danger of abandoning his permanent resident status. When attempting to reenter the US after an extended stay outside, he may be refused admission. The officer will tell him that his alien resident card is no good because he has abandoned his status. He is then faced with either returning to his home country or fighting to keep his immigrant status in immigration court.
The Department of Homeland Security (DHS) takes the position that an individual has abandoned his permanent resident status if he is absent from the US for a year or more. Frequent, long absences for less time than that may also be viewed with suspicion, especially if the immigrant lives and works in another country. Ultimately, the test is not defined solely in terms of time. It is determined by whether the immigrant intended to be “temporarily abroad”.
A permanent resident is considered to have returned from a temporary visit abroad when his time outside the US is for a relatively short period fixed by some early event or when the time outside the US will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time (example, taking care of a terminally ill relative).
A returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period. If the stay is protracted and was caused by reasons beyond his control for which he was not responsible, he may still be able to keep his green card. The key remains whether his activities are consistent with an intent to return to the United States as soon as practicable. Both DHS and the court look to objective factors to determine the subjective intent. These factors include the alien’s family ties, property holdings, and business affiliations both inside the United States, and in the foreign country. The greencard holder’s desire to maintain his permanent resident status, without more, is insufficient. He must support his professed intent with actions, such as renewing his driver’s license or state identification card, filing income tax returns as a resident, or maintaining bank and credit card accounts in the US.
If the immigrant knows or suspects that he will need to remain outside the US for an extended period of time, he should apply for a re-entry permit. The reason for remaining outside of the US should support his contention that his stay is temporary and that he intends to retain his permanent resident in this country. A reentry permit is justified when one intends to pursue or finish studies abroad, sell or close a business or sell or otherwise dispose of property. A re-entry permit is usually granted for two years. While it is not conclusive, it does support the contention that the individual did not intend to abandon his permanent residence at the time he left. Changes in circumstances or absences that exceed the validity of the reentry permit will need to be satisfactorily explained.
The reentry permit application must be filed while the applicant is physically present in the United States. Fingerprints and other background checks (known as biometrics) must be collected before the applicant departs. Leaving the US before a decision is made on an application for a Re-entry Permit usually does not affect the application. The reentry permit can be sent to an address outside the US.
It is important to remember that physical presence is also an issue when one applies for naturalization. Absences of one year or more break the chain of physical presence. Frequent or extended absences for less than one year may also adversely affect US citizenship eligibility. A re-entry permit does not cure either of these problems.