Maintaining Your
Permanent Residence

How Absences Affect Your Green Card

Obtaining a Green Card and becoming a lawful permanent resident (LPR) represents an important milestone for any immigrant to the United States, imparting several important rights and benefits. However, permanent residence status can be lost through certain actions, including lengthy or frequent absences from the U.S.

Temporariness and Intent

When determining whether permanent residence has been abandoned, immigration law focuses on the concepts of temporariness and intent. If an LPR can demonstrate that they maintained an ongoing and uninterrupted intent to return to the U.S. as their actual home, the absence is considered temporary and the residency is not deemed abandoned — even if it lasted well over one year. On the other hand, short but frequent absences from the U.S. may lead to abandonment if there is a lack of intent to return permanently.

An individual's intent is ascertained by examining the location of the individual's family ties, property, investment holdings, and place of employment, and whether they intended to return to the United States as merely a place of employment or business or as an actual home.

Real-World Examples

Example 1: Likely Abandonment

A U.S. subsidiary of a Canadian parent company sends its employee (an LPR) back to Canada for a temporary assignment, but there is nothing in writing. The employee's spouse and minor children also move. The employee's U.S. house is sold, U.S. bank and investment accounts are closed, and the family's personal belongings are moved to Canada. They also buy a Canadian home and enroll their children in a Canadian school. Finally, the employee receives a salary from the Canadian parent company and files Canadian tax returns but does not file U.S. tax returns.

Example 2: Abandonment Unlikely

Under a similar fact pattern as above, if the employee has (a) a signed agreement with the employer indicating a temporary engagement, and after completion returns to the U.S., and (b) continues to file U.S. tax returns while in Canada, a finding of abandonment is unlikely.

Example 3: Family Illness Abroad

Instead of a job transfer, the LPR's sole surviving parent becomes ill and the person moves back to Canada to help for what is anticipated to be less than one year. Instead, the parent is ill for three years and then passes away.

The key to a successful non-abandonment argument would be filing U.S. tax returns, documenting the parent's illness, and returning to the U.S. within approximately six months of the parent's passing. Renting a home in Canada instead of buying one would also help to show that the absence from the United States was only temporary.

Example 4: Child Custody Dispute

A single mother LPR and her 11-year-old minor child move back to Canada due to the child's father threatening a lawsuit over custody. She puts some of her personal belongings in storage in the U.S. and continues to file U.S. tax returns, despite working full-time in Canada. Upon the child's 18th birthday, she moves back to the U.S.

Provided the child custody issue is documented and she keeps receipts of her storage rental costs and U.S. tax return filings, the LPR would not be deemed to have abandoned her U.S. permanent resident status, despite the long absence.

Why You Need a Reentry Permit

An LPR who is planning on leaving the United States for more than one year should strongly consider applying for a Reentry Permit before leaving the country. While possession of a valid Reentry Permit does not prevent Customs & Border Protection (CBP) from inquiring as to whether the holder abandoned residency, it establishes that the LPR did not intend to abandon permanent resident status and prevents CBP from relying solely on the duration of absence as a basis to determine abandonment.

Common examples of ties to the U.S. include maintaining a U.S. mailing address, keeping U.S. bank accounts, holding a valid U.S. driver's license, maintaining home or auto insurance, and retaining ownership of property or a business in the U.S.

Requirements and Documentation

An applicant for a Reentry Permit must be physically present in the U.S. at the time of filing and comply with the biometrics services requirement, which is usually scheduled several weeks after filing.

Validity Period

Reentry Permits are usually granted for a maximum duration of two years and are not renewable. The LPR must return to the U.S. to apply for a new Reentry Permit if necessary.

If, since becoming an LPR or during the last five years (whichever is shorter), the LPR has been outside the U.S. for a total of more than four years, the Reentry Permit's validity will be limited to one year only.

Exceptions to this one-year limit are possible for employees of public international organizations of which the U.S. is a member by treaty or statute, professional athletes regularly competing in the U.S. and worldwide, and civilian or military employees of the U.S. government.

Family Members

Each family member holding permanent resident status and wishing to accompany the principal applicant during their absence from the U.S. must file their own, separate application for a Reentry Permit.

Children

Generally, if a parent is deemed to have abandoned his or her permanent residence, any accompanying children who are subject to the parent's custody and control will have abandoned their permanent residence as well.

What to Expect at the Border

When returning to the U.S. with a valid Green Card and valid I-131 Reentry Permit, the inspecting CBP officer may ask questions about an LPR's extended trip. However, the officer has no authority to take away a Green Card or to require the LPR to relinquish his or her permanent resident status on the spot, or to sign anything to that effect.

Conditional Residents

For purposes of abandonment of residence, U.S. immigration law makes no distinction between LPRs and conditional residents (CRs). Therefore, CRs can — and should — apply for Reentry Permits in case of longer absences.

The Reentry Permit for a conditional resident will be valid for no longer than the date by which the CR must apply for removal of the conditions on his or her status.

SB-1 Visa Overview

LPRs who remain outside the U.S. for longer than one year or beyond the expiration date of their Reentry Permit, but who do so due to circumstances beyond their control, may qualify for special immigrant status as a returning resident and apply for a returning resident immigrant visa (SB-1) at a U.S. consulate or embassy abroad.

Exceptions for Military and Government Families

Exceptions exist for the spouse or children of a U.S. military member or of a civilian employee of the U.S. government stationed abroad. These individuals do not require an SB-1 returning resident immigrant visa and may instead use their Green Card to reenter the U.S. even if it has expired, as long as they have not abandoned their LPR status and their U.S. citizen spouse or parent is also returning to the U.S.

SB-1 vs. Reentry Permit

Compared to the I-131 Reentry Permit, the SB-1 visa has lower approval rates and requires substantially more documentation, including a new medical exam by an authorized physician abroad. Nevertheless, the SB-1 route can be a viable option in some cases, especially since it does not require the filing and approval of a new I-130 petition for an alien relative. Instead, only the immigrant visa process needs to be repeated.

Naturalization Residence Requirements

Applicants for U.S. citizenship must have resided in the United States for five years immediately preceding the date of filing for naturalization (three years for marriage-based LPRs) and have been physically present in the U.S. for at least 30 months of those five years (18 months if marriage-based).

The N-470 Application

To avoid breaking the continuity of residence, individuals employed abroad by certain qualifying organizations may seek to preserve their residence by filing an N-470, Application to Preserve Residence for Naturalization Purposes.

• U.S. government employees
• Employees of an American institution of research
• Employees of certain U.S. corporations engaged in the development of U.S. foreign trade
• Employees of certain public international organizations

Once approved, the N-470 will preserve not just the applicant's residence for naturalization purposes, but also that of their qualifying family members.