Travel and Maintaining Permanent Resident (Green Card) Status

by Mike DeBlasi | August 1, 2018 5:36 pm

We often get questions on the potential impact of a person’s relocation outside of the U.S. while in lawful permanent resident status.  The two concerns are: (1) maintenance of lawful permanent resident (green card) status and (2) preservation of eligibility for naturalization in the future.  A green card holder will not lose either immediately upon departure and may maintain lawful permanent resident status and obtain extensions of their green card, even if they have failed to maintain eligibility for naturalization.

Maintaining Lawful Permanent Resident Status

Admission as a lawful permanent resident depends on your intention to remain a U.S. permanent resident.  Unfortunately, a statement of your intent to return to the U.S. and remain a permanent resident may not, by itself, be sufficient for USCIS purposes.  USCIS will look at several objective facts to assess your intent, including:

• the length of your absence;
• the purpose of your departure;
• facts indicating a fixed termination date for your stay abroad;
• continued filing of U.S. tax returns as a resident of the U.S. (even if that filing does not require payment of U.S. taxes, due to treaty or other exemptions);
• maintenance of ties in the U.S. (such as a U.S. address, property ownership, bank accounts, credit cards, and driver’s license);
• the location of your close family members; and
• the location and nature of your future employment.

Filing tax returns as a non-resident raises a rebuttable presumption that you abandoned your permanent resident status.  Although filing U.S. tax returns as a resident alien is one of the most important of these considerations, tax returns alone will be insufficient to prove your intent to reside permanently in the U.S.

You should not necessarily lose your permanent resident status by spending extended periods of time abroad, but USCIS will consider the absence in judging your intent to remain a permanent resident.  Accordingly, you must express clear intent to permanently reside in the U.S. and demonstrate this intent with objective evidence.  Fortunately, you can control most of the factors that USCIS will consider.  General rules to observe include:

• File U.S. tax returns as a resident;
• Maintain a U.S. address;
• Maintain and use your U.S. bank and credit accounts;
• Maintain your U.S. driver’s license; and
• Return to the U.S. as often as possible.

Eligibility for Naturalization

To be eligible for naturalization, there are two important requirements that must be met:

1. Continuous residence as a permanent resident in the U.S. for a minimum period: Either 5 years following lawful admission to permanent residence based on employment, or 3 years if the lawful permanent resident (LPR) is the spouse of a U.S. citizen.
2. Physical presence in the U.S. for at least half of the required period:  Either 2 ½ years for employment-based LPR, or 1 ½ years as spouse of U.S. citizen.

An absence of less than 6 months does not break the continuity of residence, an absence of more than 6 months but less than 1 year breaks the continuity of residence unless you can give a reasonable explanation for the absence, and an absence of one year or more automatically breaks the continuity of residence unless you file an Application to Preserve Residence for Naturalization prior to the 1 year absence.  To be eligible to file to preserve continuity of residence, you need to be physically present in the U.S. as a lawful permanent resident for 1 year.  If continuity of residence is not maintained, you will be required to restart the 3 year clock for eligibility to apply for naturalization upon return to the U.S.

If you have questions about your permanent resident status or the ability to apply for naturalization, please contact a member of our Immigration Team.

About the Authors: Julie Morse[1] and Robin Vermette

Source URL: https://orr-reno.com/travel-and-maintaining-permanent-resident-green-card-status/

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