----- Before you start Celebrating -----
Maintaining Your Permanent Residency
Published on January 2012 | By Shahzad Ahmed - Orlando Immigration Attorney with NeJame Law
So you finally got it! Your green card. After so much wait and effort, the day is here.
But wait. What? There are travel restrictions?
One of the most common concerns of lawful permanent residents is their ability to travel to their country of origin for an extended period of time. This happens most frequently to parents, who acquired permanent residency through their U.S. citizen son's or daughter's petition, but the parents are not quite prepared to be uprooted from their country of childhood.
As a result, they spend prolonged time in their "home" country, leading to an extended absence from the U.S. However, on their way back, they are greeted by an unfriendly Customs and Border Protection (CBP) officer who interrogates them extensively about why they were away for so long.
Why does this happen? Why can't I stay abroad for as long as I want as a permanent resident (green card holder)?
The main reason why a permanent resident is restricted in his or her absence from the U.S. is that the U.S. immigration law does not permit dual residency. Thus, when a permanent resident is living or working in a foreign country, then an issue arises as to where that person is actually residing. However, enforcing this restriction is problematic as shown below.
So can I avoid the whole problem by returning to the U.S. within one year?
Many permanent residents believe that as long as they return to the United States within 1 year, then they will be able to preserve their residency. However, this one year rule mentioned in the regulations applies to the invalidation of the "green card." Moreover, pursuant to the immigration statute, if the applicant has been absent from the U.S. for a continuous period of more than 6 months, then he is deemed to be seeking admission when he returns at the port of entry. The applicant may be successfully admitted upon showing sufficient ties to the U.S.
So what if I live abroad but keep returning to the U.S. within every six months? Will that maintain my U.S. residency?
Not necessarily. Often permanent residents do this and spend only a couple of weeks or months in the U.S. out of the whole year. While avoiding a continuance absence in excess of 6 months from the U.S. prevents the government from deeming you as "seeking admission," the government may still make a case of abandonment by looking at the overall factors, i.e. the amount of time actually being spent in the U.S., where the family ties are, where the property and employment ties are, and the purpose for the absence from the U.S. Thus, if a permanent resident is absent for a significant amount of time, even though not continuously in excess of 6 months, he or she must still be careful about abandonment issues. It is best to consult an experienced immigration attorney to evaluate his or her specific circumstances.
What if I get a re-entry permit? Will that protect me from abandonment problems?
It will, to an extent. According to the regulations, a permanent resident who intends to remain abroad for an extended period of time, may apply for re-entry permit. The application for this permit must be filed prior to departing the United States. The legal effect of this permit is that upon your return, the CBP may not consider the duration of your absence as a reason for abandonment. However, the CBP may still consider other factors, i.e. where your family ties are, where your property and employment ties are, and the purpose for your absence. Thus, while a re-entry permit provides a certain level of protection, it is not a complete shield from possible abandonment problems.
If upon my return, the CBP believes that I abandoned my residency, can they deport me at the border?
As a lawful permanent resident, you would have the right to a hearing before an immigration judge. You will be granted this opportunity by the CBP officer. When you do get the hearing, you will be permitted to present any relevant evidence to the judge in order to establish that you did not intend to abandon your residency.
According to case law, abandonment is a matter of "intent." The CBP officer and the immigration judge should examine various above-mentioned factors in determining whether one abandoned his or her residency.
How do I maintain my residency to be eligible for citizenship?
When applying for naturalization, the applicant must demonstrate that he or she not only has been a U.S. resident for the last 5 years (or 3 years if married to and residing with a U.S. citizen spouse), and that he or she maintained continuous residency until the time of admission to citizenship.
Once again, if the applicant has been absent from the U.S. for a continuous period of 6 months, then there is a legal presumption of abandonment. The applicant for naturalization may rebut this presumption by showing sufficient ties to the U.S.
Moreover, for naturalization purposes, if an applicant has been absent from the U.S. continuously for 1 year, then he or she has conclusively abandoned his or her residency. In such case, the person must reestablish residency by waiting 4 years and 1 day (or 2 years and 1 day, if subject to the 3 year residency requirement) after returning to the U.S., before filing for naturalization.
What documents must I have to present upon my return to the U.S.?
As a lawful permanent resident, you must present one of the acceptable forms of evidence of lawful permanent residency. To name a few, the regulations allow you to present, the resident alien card (“green card”), I-551 stamp on your passport, a notice of action from the Department of Homeland Security acknowledging your adjustment of status, a permanent residency visa, and more. To this end, it is critical to present unexpired documents or evidence. While the CBP manual encourages the officers to examine their internal data systems for evidence of permanent residency in case the immigrant does not have the proper documents in possession, for obvious reasons, an immigrant should not travel without proper unexpired documents.
We hope that this article has acquainted the reader with some of the commonly recurring issues for maintaining residency. While acquiring U.S. residency is a dream for many, it is crucial to know the rules for preserving it.