Solving complex immigration matters, with people as the focus of the firm’s practice
Permanent resident or ‘green card’ status allows an individual to live permanently in the United States with the right of employment and the ability to travel in and out of the U.S. Immigrant visas are primarily available in four basic categories:
- Employment based immigration
- Family based immigration
- Special laws for citizens of certain countries
General information can also be found at:
“How Do I” Guides for Permanent Residents
Maintaining Permanent Resident Status
After permanent residency is approved, we are frequently asked ‘Can I lose my green card status?’ For example, international employees often express concern about the effect that a new work assignment abroad may have on their immigration status. They are justified in their concern and wise to seek advice before undertaking the assignment.
- What is permanent resident status and how is it different from U.S. citizenship?
- Can permanent resident status be lost?
- What measures can be taken by permanent residents temporarily living abroad to avoid a finding of abandonment?
1. What is permanent resident status and how is it different from U.S. citizenship?
‘Lawful permanent resident status’ is defined under U.S. immigration law as an alien ‘lawfully accorded the privilege of residing permanently in the U.S.’ So a permanent resident has the privilege of being able to reside in the U.S. on a permanent basis and has virtually unrestricted authorization to work in any job, for any employer, including self-employment; with the exception of certain positions that require U.S. citizenship. Proof of permanent resident status is the ‘Green Card’, Form I-551. The card is valid for 10 years and must be renewed, however, permanent resident status itself does not ‘expire’. Unlike a U.S. citizen, a permanent resident has no right to vote in a U.S. election or serve on a jury.
2. Can permanent resident status be lost?
Yes, in several ways: One is by becoming a U.S. citizen. After 5 years in permanent resident status (3 years, if married to a U.S. citizen) one is eligible to apply to become a U.S. citizen by naturalization. Once naturalized as a U.S. citizen, one ceases to be a U.S. permanent resident. A permanent resident can also voluntarily give up his ‘green card’ by signing a form before a U.S. consular or immigration officer to ‘relinquish’ status. A permanent resident can be determined to be subject to a ground of ‘inadmissibility’ or ‘removability’ listed in the Immigration Act. These grounds include criminal offenses (even minor offenses involving controlled substances, firearms, alien smuggling, and domestic abuse), security related grounds, communicable disease, etc. These problems can be uncovered upon return to the U.S. after international travel as the various security clearance databases are checked, or can be triggered by an arrest or by detaining and questioning by a law enforcement or immigration officer.
Finally, permanent resident status can be lost through abandonment. Abandonment can occur due to extended periods of travel abroad, such as an overseas work assignment. The test used to determine whether permanent resident status has been abandoned is: ‘Whether the alien is returning to an unrelinquished lawful permanent residence in the U.S. after a temporary absence abroad’. This requires less than a permanent dwelling place in the U.S. , but more than mere desire to retain permanent resident status. The permanent resident’s intention must be for the absence from the U.S. to be only temporary, there must be evidence documenting this intent. A ‘totality of the circumstances’ analysis is used by Immigration to determine whether a permanent resident has ‘abandoned’ permanent resident status and no longer has an intent to be only ‘temporarily absent’. Factors that are considered include: close family ties in the U.S.; property holdings in the U.S.; whether the employer is a U.S. company; the reason for the absence; duration of the absence; business affiliations in the U.S. and abroad. The ‘burden of proof’ is on the government to prove abandonment of lawful permanent resident status by clear, unequivocal and convincing evidence.
An immigration officer reviewing the case must be convinced that the absence from the U.S. is temporary and the permanent resident has the intent to return to the U.S. upon completion of the assignment abroad.
3. What measures can be taken by permanent residents temporarily living abroad to avoid a finding of abandonment?
1. File U.S. Federal Income Tax returns as a ‘U.S. Resident’ – filing as a ‘Non-Resident’ raises a rebuttable presumption of abandonment
2. Apply for a Re-Entry Permit – (note that this does not guarantee admission to the U.S. and a finding of no abandonment of status, however, it is a declaration which helps establish the permanent resident’s intent not to abandon status) The application must be filed while the permanent resident is physically present in the U. S., however, he can then depart and have the permit mailed to him abroad upon approval. A Re-entry permit is normally issued with a validity period of 2 years, so this document may allow a permanent resident to re-enter after up to a 2 year absence. After a permanent resident is absent for more than 4 years of the 5 years preceding an application, validity of only 1 year is given. Apply using Form I-131 and file only with the CIS Nebraska Service Center; check the CIS website for instructions and processing times at www.uscis.gov
3. Document ties to the U.S. such as,
- Proof of property ownership; especially a home
- U.S. bank and savings accounts; credit cards; and insurance policies
- U.S. driver’s license
- Family members residing in the U.S.
- Employment with a U.S. company abroad & temporariness of the international assignment
- Any other evidence of the intent to return to the U.S. after a temporary absence
- After an absence of longer than 1 year, the ‘green card’ cannot be used to re-enter the U.S. A ‘boarding letter’ may be obtained from the closest U.S. embassy or consulate, and this will be issued at the officer’s discretion based upon proof that permanent resident status has not been abandoned. Upon return to the U.S., the immigration officer will also ask questions to determine whether permanent resident status has been abandoned, and may refer the traveler for further immigration proceedings. Permanent residents returning to the U.S. after an extended absence of six months to a under a year should be prepared for questions from the Immigration officer to determine the circumstances of the absence. It is advisable to carry documentation of the temporariness of the absence and ties to the U.S. as described above.