The term “permanent residency” can be misleading. There are multiple situations through which this status can be lost. Even when permanent residents play by the rules – obeying the law, paying their taxes, and carefully planning any trips out of the U.S. – things can go wrong. As such, anyone considering an extended absence from the U.S., or with concerns about maintaining their status, should obtain immediate legal counsel to ensure that all steps are followed in the most precise manner possible.
The path to permanent residency can be long and challenging. Once obtained, permanent resident status can provide an individual or family with a great sense of comfort. With permanent resident status, an individual is entitled to live and work in the U.S., qualify for social programs and financial aid, and to travel abroad. However, the word “permanent” can give people a false sense of security. It’s not uncommon for a “permanent” resident to return from a trip abroad, only to have the Department of Homeland Security allege that they abandoned their permanent resident status. This is not surprising when a permanent resident has one or more extended absences from the U.S.
The Six-Month and One-Year Marks
Once permanent residency has been granted, the intent to remain in the U.S. becomes paramount to avoid a finding of abandonment. Although leaving the U.S. is permitted, trips that are too frequent or too long may present an issue. Generally, absences of less than six months will fall under the radar if they are not particularly frequent and the permanent resident has strong ties to the U.S. Problems may arise, however, beyond the six-month mark. Absences of between six months and one year are suspect, but may still be permitted depending on their frequency, reason for travel, etc. However, trips outside of the U.S. for one year or more are of special concern. Returning to the U.S. following an absence of more than one year may be difficult, as the permanent resident is considered to have abandoned their status.
The Impermanence of Permanence
There are many ways in which you can lose your permanent resident status. If, for example, you obtained “conditional permanent resident status” based on marriage or a qualifying investment, your status may be terminated if you committed fraud at any point in the process. You can also lose permanent status by committing a criminal offense. However, abandoning your permanent status is another issue altogether. Any of the following situations may result in an assumption of abandonment:
•Moving abroad with the intent to remain in the other country permanently.
•A lengthy absence from the U.S., unless your absence was intended to be temporary.
•Failing to file U.S. income taxes while living abroad.
•Declaring on your tax returns that you are a “nonimmigrant.”
The Rules of Intent
Intent plays an important role in determining whether someone abandoned his or her permanent resident status. It is crucial to be proactive about proving intent; waiting until permanent residency has been challenged may prove ineffective. It is also often unsuccessful to simply tell U.S. Customs and Border Protection (CBP) that your intent all along was to timely return to the U.S. and maintain your permanent resident status.
A One-Size-Fits-All Solution Doesn’t Exist
When it comes to permanent resident status, no two residents are alike. If you have family ties in the U.S., own property, file tax returns annually, and are gainfully employed, CBP is less likely to take the position that you have abandoned your status. But such a scenario is not impossible.
Reeves Miller Zhang & Diza – Full-Service Immigration Law Firm
If you are considering being outside the U.S. for an extended period of time, it is highly recommended that you speak with an immigration attorney about a Re-Entry Permit. Or, if you have already been outside of the U.S. for an extended period of time and are concerned about whether you will be permitted to return with only your green card, you may want to inquire about a Returning Resident Visa.
Obtaining legal counsel before you make any decisions that could impact your ability to live and work in the U.S. is advisable. However, we do recognize that situations sometimes change due to circumstances beyond your control. If you find yourself facing abandonment or deportation proceedings, the skilled legal team at Reeves Miller Zhang & Diza can help. We will analyze the details of your unique situation to determine the most appropriate strategy. Contact us today for a confidential consultation about your case.