Maintaining Legal Permanent Residence
Under U.S. law, Legal Permanent Resident (LPR) status is not a right, but a privilege, which is subject to revocation. This means that a foreign national may lose his LPR status even after having received a green card.
Green cards revocations happen for a number of reasons, including committing certain criminal act, failing to file an income tax return, obtaining a green card through fraud or leaving the U.S. for more than 1 year without obtaining a re-entry permit. This post discusses the issue of “abandonment of permanent resident status”. The Callan Law Firm, P.C. can assist you with maintaining your LPR status. Click here to speak with an attorney now.
Many LPRs wrongly assume that since they have received a green card, they can travel between their home country and the U.S. without any restrictions, remaining in their home countries indefinitely. Those aware of the abandonment of residency issue wrongly assume that they will not be deemed to have abandoned their LPR status if they remain in the U.S. for a certain period of time every year. In both cases, USCIS may find that the LPR has abandoned his permanent residency, notwithstanding the foreign national’s attempts to maintain U.S. residency.
Factors Considered in Determining Whether Foreign National Intended to Abandon Permanent Resident Status
An LPR’s intent is the key factor in USCIS’ determination of whether an LPR has abandoned his permanent residence in the U.S. Although “intent” is often difficult to prove, USCIS considers certain objective factors to determine an LPR’s intent. These objective factors include:
- The length of the LPR’s absence from the U.S.;
- The purpose for the LPR’s departure;
- The existence of facts evidencing a fixed termination date for the stay abroad (return ticket);
- The continued filing of U.S. tax returns with the IRS in a resident status;
- The location of the LPR’s immediate family members;
- The location and nature of the LPR’s employment abroad;
- The maintenance of other ties with the U.S. including mailing address, bank account, ownership of property, driver’s license, club membership, mortgage, and credit card, etc.
The above factors are each to be addressed when considering whether an LPR has maintained permanent residence. This is called the “totality of the circumstances” test.
Generally speaking, if an LPR leaves the U.S. for one year or less, he can use his green card as a re-entry document. Conversely, if an alien is outside the U.S. for more than one year, he will likely be unable to re-enter the U.S. without a re-entry permit because the government assumes that an absence of more than one year indicates an abandonment of U.S. permanent residency.
Therefore, an LPR who would like to preserve their green cards should maintain strong ties with the U.S. and consider following the below recommendations to maintain LPR status.
Maintain Strong Family Ties in the U.S.
If an LPR works outside the U.S., or is traveling abroad for a significant amount of time, it is best if the LPR’s immediate family members, including any spouse, children, and parents, remain in the U.S. Documentation of strong family ties to the U.S. shows the LPR’s intention to keep the LPR’s permanent resident status.
Employment abroad is the most frequent reason that LPRs are compelled to remain outside the U.S. for an extended period of time. A written letter from the employer, or an employment contract identifying the length and term of the overseas job, will offer objective facts for consideration by USCIS with regard to the LPR’s intention to retain his permanent resident status. Furthermore, if available, a written statement that the LPR will be transferred back to the U.S. after the completion of the overseas employment will be useful.
Filing Tax Returns as a U.S. resident
LPRs are required to file tax returns as a U.S. Resident Alien with the IRS. To properly file a tax return, the LPR must disclose his worldwide income in the tax return. Filing a tax return as a resident alien does not require that the alien actually pay income taxes if he is employed overseas, because treaties and foreign tax credits may minimize the tax amount actually paid to the IRS, but filing a tax return as a non-resident alien will create a rebuttable presumption that the LPR has abandoned his U.S. permanent residency.
Other strong ties with the U.S.
Even if an LPR is engaged in overseas employment and has close family members in the U.S., the LPR should attempt to maintain as many ties with the U.S. as possible. Ties with the U.S. which evidence that an LPR retains his U.S. permanent residence, include, but are not limited to: (1) using a mailing address in the U.S.; (2) keep a valid driver’s license; (3) use a bank account in the U.S.; (4) use a credit card issued by a U.S. bank consistently; (5) pay a mortgage; and (6) keep professional or social memberships.
Lawful permanent residents or conditional permanent residents who wish to remain outside the U.S. for more than one year, but less than two years, may apply for a re-entry permit. A Reentry Permit enables an LPR to enter the U.S. after traveling abroad for longer than one year but less than two years. As previously noted, if an LPR travels out of the U.S. for longer than one year the LPR faces a risk of denial of admission. A Re-entry Permit is used to avoid the presumption of abandonment. In addition, a Reentry Permit serves as a passport for an LPR if otherwise unable to obtain a passport from the LPRs home country. For more information about Reentry Permits, please click here.
To speak with an attorney about maintaining permanent lawful status, contact us now.