Extended Travel by a Permanent Resident (2 of 2)18 Jun 2020
This is the second in our two-part NewsBrief on extended travel by U.S. permanent residents (“green card” holders). Here we provide additional information regarding when such travel is acceptable and when it can be regarded as an abandonment of U.S. permanent resident status. Also addressed are the procedures that are followed when U.S. Customs and Border Protection (CBP) officers at the port of entry (POE) are not convinced that a traveler continues to be eligible to enter the United States as a permanent resident.
Travel Must Be Temporary
As explained in Part 1 of this NewsBrief, maintenance of permanent resident status is not determined purely based on the duration of time spent abroad. There is no specific length of travel that automatically allows one to return to the United States as a permanent resident. It is a factual decision in which the length of time abroad is one of the factors to be considered. In all cases, the travel abroad must be temporary in nature.
In order for time outside of the United States to be regarded as temporary, one’s trip must either have a fixed termination date or be based on an event that has a reasonable possibility of occurring within a relatively short duration. Examples of the latter would be travel abroad to temporarily care for a sick relative or to sell off personal assets. Temporary work assignments may also be acceptable, particularly when working for a U.S. employer. The exact timeframe needed for the particular trip may not be known precisely at first, but the travel itself is for a particular, short-term purpose.
Family Medical Needs
It is important for permanent residents to be cautious when the reason for the travel does not have any identifiable, expected point of termination in the reasonably near future. Caring for aging or sick relatives is an area where problems can arise. Permanent residents may need to travel to help their parents or other ill relatives. This travel can, in some cases, be consistent with maintaining permanent residence in the United States. Typically, situations consistent with being a permanent resident are those in which the relative’s need for help is anticipated as being temporary. The relative is either expected to recover within a timeframe typically measured in weeks or months, at the most, or if recovery is not expected, the condition has already declined and the end is likely to occur fairly soon.
Instances of temporary medical needs are different from the permanent resident’s need to provide more general, day-to-day care for aging relatives. While the need to care for aging parents and other relatives living in the home country is understandable, it may not be consistent with status as a U.S. permanent resident. Older relatives may need help as they age, but this condition can extend for many years – even decades. Extended trips abroad to care for ailing or aging relatives over the long term generally are not consistent with maintaining permanent residence, even if there is a hope to return to the United States in the distant future. One possible solution in these situations is to share the responsibility of caring for parents with siblings or other relatives for set periods. While the need for such care may extend for years, if one’s immediate obligation is for a specified, limited duration, this is likely to be considered more consistent with maintaining U.S. permanent residence.
Extended Stay Abroad Due to COVID-19
Many lawful permanent residents who were outside the United States when the COVID-19 pandemic began have been stuck abroad months longer than was originally anticipated. The general rules for determining whether a person has abandoned residency have not been altered because of the pandemic. However, the pandemic has created some unique reasons as to why a person may have remained outside the U.S. for an extended period.
For example, if a permanent resident can evidence that travel back to the U.S. was not feasible due to travel restrictions or the like, this certainly could be used to argue that permanent residence has been maintained. On the other hand, if a person has a history of spending long stretches outside of the United States, and/or was outside of the country for an extended period of time before the pandemic began, such arguments may not be sufficient. Permanent residents in this situation should consult with a qualified attorney.
Decision Starts with CBP and Can End with Judge
Factors considered in the determination of abandonment of permanent resident status are evaluated by the CBP inspector at the airport or other POE. If the CBP officer believes that the individual has maintained lawful permanent residence status, entry will be allowed based on the green card. If the CBP officer believes that the traveler has not maintained permanent resident status, the CBP may offer the option of officially relinquishing permanent residence status and allowing the individual to enter the United States as a visitor. Those who are not given or do not take this option should be allowed to enter the U.S. pursuant to a grant of parole by the CBP. The purpose of this parole is to appear for a hearing before an immigration court to determine if the permanent resident has abandoned status. In this event, abandonment is determined by an immigration judge.
As explained above, the I-551 (green card) is the document that a permanent resident needs in order to request return to the United States after travel abroad for a maximum timeframe of up to one year. Individuals exceeding this limit may be refused boarding on return flights to the U.S. A permanent resident considering longer travel must obtain the reentry permit as the proper document to request reentry after up to two years of travel abroad. However, both the green card and the reentry permit do not automatically guarantee that one will be processed into the U.S. as a permanent resident at the POE. This decision depends upon the facts of the situation, including prior travel patterns and the reasons for the extended travel. Those green card holders contemplating lengthy and/or repeated trips abroad should obtain appropriate advice well in advance of travel. Careful planning and understanding the risks and potential options should include advice from a qualified and experienced immigration attorney.
[Be certain to read Part 1 of this MurthyDotCom NewsBrief.]
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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