How much is too much? -What Legal Permanent Residents need to know about International Travel

​Now that you have finally received your green card, you are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status.  

You may be found to have abandoned your status if you:

• Move to another country, intending to live there permanently.
• Remain outside of the United States for an extended period of time, unless you intended this to be a temporary absence, as shown by:
  • The reason for your trip;
  • How long you intended to be absent from the United States;
  • Any other circumstances of your absence; and
  • Any events that may have prolonged your absence.
  • Note: Obtaining a re-entry permit from USCIS before you leave, or a returning resident visa (SB-1) from a U.S. consulate while abroad, may assist you in showing that you intended only a temporary absence.
• Fail to file income tax returns while living outside of the United States for any period.
• Declare yourself a “nonimmigrant” on your U.S. tax returns.

So what is considered an extended period of time? Here is the breakdown:

1. Stay outside of the U.S. for less than six months

Regulation provides that an Legal permanent resident returning from abroad doesn’t even count as applying to CBP for “admission” (i.e., CBP won’t question his or her qualifications to enter) if he or she meets the following requirements, among others:

• he or she has been abroad for under 180 days; and
• he or she has not abandoned LPR status by making a trip abroad that isn’t “temporary.”

It is important to point out that being abroad for under 6 months (actually 180 days) is one of the requirements but is not enough. Your trips abroad must still fall within the definition of “temporary.” one example is when somebody who lives abroad but who briefly “touches down” in the U.S. once every 5 months for vacation. This person has abandoned LPR status so should not be readmitted as an LPR, despite keeping every trip abroad under 6 months.
 
2. Stay outside of the U.S. for more than six months but less than one year

A general guide used is whether you have been absent from the United States for more than a year. If you are a lawful permanent resident , you may leave the U.S. multiple times and reenter, as long as you do not intend to stay outside the U.S. for 1 year or more. However, please note abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence.( See the “touch down” rule we explained above. 

3. Stay outside of the U.S. for more than one year but less than two years

If you plan on being absent from the United States for longer than a year, we suggest you first apply for a reentry permit.. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit’s validity without the need to obtain a returning resident visa from a U.S. Embassy or Consulate abroad.

4. Stay outside of the U.S. for more than two years

If you remain outside of the United States for more than 2 years, any reentry permit granted before your departure from the United States will have expired. In this case, we suggest you to consider applying for a returning resident visa at the nearest U.S. Embassy or Consulate. A returning resident visa applicant will be required to establish eligibility for an immigrant visa and will need a medical exam.  There is an exception to this process for the spouse or child of either a member of the U.S. Armed Forces or civilian employee of the U.S. Government stationed abroad on official orders.

Even after obtaining the reentry permit or Returning resident, you will still need to be prepared to be examined by an officer about your intent of residing in the U.S. permanently. The officer may consider criteria such as whether your intention was to visit abroad only temporarily, whether you maintained U.S. family and community ties, maintained U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver’s license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.
​
What rights do I have if the inspecting officer does not accept my explanation?
When a permanent resident returns after a trip abroad, it is important for you to understand your rights.  The most important of these rights is the right to a hearing before an immigration judge if their permanent resident status is questioned by the immigration inspector. Most visitors and other non-immigrants have no right to a hearing, and immigration inspectors have been known to try and encourage permanent residents to sign an abandonment of their green cards instead of requesting such a hearing.  Once a person signs an abandonment, their permanent resident status is gone and extremely difficult to recover.If your evidence or explanation is not accepted by the immigration inspector, do not sign the form for abandonment and politely request a hearing on the question.

Ideally, always talk to an experienced immigration about your long-term stays out of the country before you leave. Your attorney can advise you the best arguments possible for demonstrating that you have not abandoned your residence and/or jeopardized their eligibility for naturalization. This is especially important when you have already spent significant time outside the United States.   For your consultation, please call us at (213) 375-8096