Extended Travel by a Permanent Resident (1 of 2)

The Murthy Law Firm often receives questions from permanent residents (“green card” holders) regarding their options for traveling abroad for extended periods. There are certain common misunderstandings within the immigrant community regarding U.S. immigration laws for such travel by permanent residents. Here, we address some of these misconceptions and provide MurthyDotCom readers with information valuable to green card holders who may have the genuine need to travel abroad for longer durations than considered common for most personal or business travel. [Also read Part 2 of this article.]

Once-a-Year Visit to United States is Insufficient

For the permanent resident, the appropriate document for gaining reentry to the United States, following an absence of less than one year, is the green card (Form I-551) or the stamp in the passport that is temporary evidence of lawful permanent resident status. Permanent residents who have traveled abroad of periods in excess of a year typically will need a reentry permit in order to request to return to the U.S. Reentry permits can be granted for up to two years. This option is outside the scope of this article.

Because the green card can be used after departures of less than a year, there is a mistaken belief that one can maintain permanent residency simply with brief annual visits to the United States. This is NOT the case. Visiting once a year is insufficient to protect a permanent resident from having a U.S. Customs and Border Protection (CBP) officer at the airport or other port of entry (POE) question eligibility for entry as a permanent resident.

Basic Requirements After a Trip of Less Than a Year

The one-year rule has two requirements. The green card is the appropriate document for reentry only if (a) the absence from the United States is less than a year AND (b) the individual is returning to a permanent residence status that has not been relinquished after a temporary absence.

The mere return to the U.S. in no way revalidates the green card. The U.S. Department of Homeland Security (DHS) can make a factual determination that the permanent resident status has been abandoned even if the green card holder has visited the United States each year.

Absence of Less than Six Months is Not a Guarantee

In some instances, people travel between the United States and other countries once every six months. Although this is helpful in many respects, the mere reentry to the U.S. every six months does not secure one as being considered to satisfactorily have maintained permanent residence.

The reason that some people return to the United States every six months is that there is a presumption of abandonment of permanent resident status when a foreign national departs the U.S. for longer than six months. To avoid this presumption, and to potentially preserve eligibility for naturalization to U.S. citizenship, some green card holders make plans to return to the United States every six months during their extended travel abroad. The issue to be determined in these situations is whether such individuals have relinquished their permanent residence by abandonment. The answer to this question is not determined solely upon how long they spent outside of the U.S. The answer depends upon whether they really reside in the United States and have made it their permanent home.

Abandonment Depends Upon Facts

The determination regarding abandonment is based upon a review of the specific facts of the case. The CBP officer at the POE can ask questions in an effort to determine if one’s absence from the United States was temporary and consistent with being a permanent resident. The temporary nature of the absence is not solely assessed based on the number of days spent outside the United States, but rather upon whether the individual had a continuous, uninterrupted and realistic intention to return to the U.S. in the immediate future.

At the POE, the CBP officer looks at the individual’s past actions and ties to the United States to determine intent. Among the factors considered are family ties, property holdings, business affiliations, length of time previously spent in the U.S., length of time outside the U.S., community ties, and related facts. The CBP compares the existence of these factors within the United States versus similar ties outside the United States. The CBP also considers tax filings, employment, and whether there is a physical residence that has been maintained during the absence/s.

Conclusion

In part two of this article, readers will be provided with more information regarding how the DHS / CBP assesses whether travel by a permanent resident is temporary. We will also explain the procedures for situations in which the CBP does not find it appropriate to admit an individual into the United States as a permanent resident, due to extended travel. Issues of extended travel can be complex, and anyone who is contemplating extended travel abroad should consult with a knowledgeable and experienced attorney at the Murthy Law Firm in advance of departure from the United States.

Originally posted 11.May.2012, this MurthyDotCom NewsBrief has been updated for our readers.

[Read Part 2 of this article.]

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.