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After years of waiting to immigrate, a person who finally obtains
lawful permanent residence may have family concerns or other
business that either does not allow him to immediately enter the
United States (US) or requires that he leave the US for an extended
period of time. This is a problem because a green card is a
permanent resident visa. It is given to someone on condition that he
permanently resides in the US.
If the alien does not live there, he is in
danger of abandoning his permanent resident status. When attempting
to reenter the US after an extended stay outside, he may be refused
admission. The officer will tell him that his alien resident card is
no good because he has abandoned his status. He is then faced with
either returning to his home country or fighting to keep his
immigrant status in immigration court.
The Department of Homeland Security (DHS) takes
the position that an individual has abandoned his permanent resident
status if he is absent from the US for a year or more. Frequent,
long absences for less time than that may also be viewed with
suspicion, especially if the immigrant lives and works in another
country. Ultimately, the test is not defined solely in terms of
time. It is determined by whether the immigrant intended to be
“temporarily abroad.”
A permanent resident is considered to have
returned from a temporary visit abroad when his time outside the US
is for a relatively short period fixed by some early event, or when
the time outside the US will terminate upon the occurrence of an
event having a reasonable possibility of occurring within a
relatively short period of time (for example, to take care of a
terminally ill relative).
A returning resident does not necessarily
abandon his status if he extends his trip beyond a relatively short
period. If the stay is protracted and was caused by reasons beyond
his control for which he was not responsible, he may still be able
to keep his green card. The key remains whether his activities are
consistent with an intent to return to the United States as soon as
practicable.
Both DHS and the court look to objective factors
to determine the subjective intent. These factors include the
alien’s family ties, property holdings, and business affiliations
both inside the United States, and in the foreign country.
The greencard holder’s desire to maintain his
permanent resident status, without more, is insufficient. He must
support his professed intent with actions, such as renewing his
driver’s license or state identification card, filing income tax
returns as a resident, or maintaining bank and credit card accounts
in the US.
If the immigrant knows or suspects that he will
need to remain outside the US for an extended period of time, he
should apply for a re-entry permit. The reason for remaining outside
of the US should support his contention that his stay is temporary,
and that he intends to retain his permanent resident in this
country. A reentry permit is justified when one intends to pursue or
finish studies abroad, sell or close a business or sell or otherwise
dispose of property.
A reentry permit is usually granted for two
years. While it is not conclusive, it does support the contention
that the individual did not intend to abandon his permanent
residence at the time he left. Changes in circumstances or absences
that exceed the validity of the reentry permit will need to be
satisfactorily explained.
The reentry permit application must be filed
while the applicant is physically present in the United States.
Fingerprints and other background checks (known as biometrics) must
be collected before the applicant departs. Leaving the US before a
decision is made on an application for a re-entry permit usually
does not affect the application. The reentry permit can be sent to
an address outside the US.
It is important to remember that physical
presence is also an issue when one applies for naturalization.
Absences of one year or more break the chain of physical presence.
Frequent or extended absences for less than one year may also
adversely affect US citizenship eligibility. A reentry permit does
not cure either of these problems.
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Author’s Note: The analysis and
suggestions offered in this column do not create a lawyer-client
relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case.
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