Abandoning Permanent Residence Status

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© Peter J. Loughlin 2008

Can you lose your green card privileges? The answer is, unfortunately, yes. A “green card,” or rather, a lawful permanent residence card is issued to allow holders to live and work in the United States. It is not to be used as an enhanced tourist visa. It is not uncommon for green card holders to return to their county for a visit, staying longer than planned—and end up losing their green card privileges.

Typically a green card holder who has been abroad for more than a year may face questioning by an immigration officer when returning to the U.S. The answers to those questions may lead to immigration removal proceedings on the grounds of having abandoned their permanent residence status.

It is important to remember that as a permanent resident, you must actually intend to live and work in the U.S. Knowing this it is important not to remain outside the U.S. for extended periods of time and risking the government’s concluding your intending to abandoning you lawful permanent residence status

How Long an Absence is Too Long?
Unfortunately there is no clear cut answer. Many people believe staying outside the country for one year will trigger issues of abandonment of their green card, but this is not actually true. The law does not in fact specify a particular period of absence. While it is true that the one year rule is a good benchmark, it is important to understand that one’s absence from the U.S. for less than one year may lead to a finding of abandonment while another’s absence of more than one year may not.

The reason for this is that the law actually looks to one’s intent rather than a specific period of absence. That said, an absence of one year or more would certainly be a factor in considering whether or not a green card holder had the intent to abandon his or her permanent residence status. The key to avoiding or prevailing on the abandonment issues then turns to establishing that the absence was for a temporary visit only and that there was no intent to abandon lawful permanent residence status. The actual time spent abroad is but one factor, albeit an important one, in determining one’s intent.

Factors in Determining Abandonment of One’s Green Card
In avoiding and/or defending a charge of abandonment of green card privileges, it then becomes important to know some factors the government will consider in determining one’s intention:

•       Temporary Purpose of  Trip Abroad
•       Employment
•       Family Ties in the U.S.
•       Maintaining a Home in the U.S
•       Financial Ties in the U.S. (.e.g., bank account, real property)       

Can a Reentry Permit Help?
While obtaining a reentry permit is not an absolute guaranty that you will not be challenged with abandonment of permanent residence, but rather makes it less likely. You should always be prepared to demonstrate as many of the factors described above should you be faced with defending your green card status. With this in mind, if you intend to make a trip outside the U.S. in excess of one year, it is advisable you consider obtaining a reentry permit. A reentry permit may be obtained by filing form I-131, however, you must file while actually physically present in the U.S. The permit itself, which is valid for two years, may actually be picked up abroad at a consular office.

Finally, it is also important to note that your time outside the U.S. while in possession of a reentry permit will not be credited a physical presence time in the U.S. for purposes of naturalization an U.S. citizenship.