Maintaining Legal Permanent Resident Status
Legal Permanent Resident (LPR) status is not a legal right but a revocable privilege. This means that an alien may lose his/her LPR status even after he/she has already received a green card, although he/she is a LPR, he/she remains an "alien." It is, therefore, possible for him/her to lose LPR status under certain circumstances.
Basically, loss of LPR status occurs when a LPR abandons his/her permanent residence in the U.S., or when he/she becomes deportable in the event he/she commits serious crime or violates other immigration laws and regulations. This article focuses on the topic of abandonment, i.e., maintaining LPR status by not retaining permanent residence in the U.S.
Many LPRs relax when they obtain a green card, believing that they can finally travel freely back and forth, or even relocate to their home countries, while maintaining the opportunity to reenter the U.S. willingly using their green cards as travel documents. Conversely, others believe that they have to stay in the U.S. for a certain period of time every year to keep their green cards. While a lengthy absence from the U.S. does not automatically cancel the LPR status of an alien, an extended absence may trigger an inquiry of the BCIS as to the alien's intention to remain a permanent resident in the U.S.
The Factors Indicating Intent
The intent of a LPR to remain a permanent residence in the U.S. is a key factor in the BCIS's determination whether the LPR abandons his/her permanent residence in the U.S. However, a mere oral or written statement of intent to remain a U.S. resident to the BCIS is not controlling. Apart from the length ofÂ absence from the U.S., the BCIS will look to many objective facts that reflect the LPR's intent. The major factors that are considered in determining the LPR's intent include:
- 1. The length of the LPR's absence from the U.S.;
- 2. The purpose for the LPR's departure;
- 3. The existence of facts evidencing a fixed termination date for the stay abroad;
- 4. The continued filing of U.S. tax returns with the IRS in a resident status;
- 5. The location of the LPR's close family members;
- 6. The location and nature of the LPR's employment abroad;
- 7. 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 Totality Test to Determine the Alien's Intent
No single factor in the above list is controlling with regard to the alien's intent to maintain legal permanent resident status in the U.S. The BCIS officers will analyze all relevant factors and circumstances of the alien, and look to the "totality of the circumstances" to decide.
As a general rule, if a LPR leaves the U.S. for one year or less, he/she can use the green card as a reentry document. By contrast, when an alien is absent from the U.S. for more than one year, he/she may have a difficult time reentering the country because the BCIS takes the position that an absence of longer than one year in duration indicates a possible abandonment of U.S. residency. For those LPRs who have been out of the U.S. for more than one year, they will need to obtain reentry permits or special immigrant visas. Many green card holders accordingly believe that in order to keep their LPR status they can simply return to the U.S. once a year and stay for several weeks. This, however, is a grave error. Merely returning to the U.S. and using the green card once a year has little bearing on the question of whether the LPR has maintained the intention to remain a permanent resident of the U.S. In fact, although some aliens have returned to the U.S. more often than once a year, they lose their LPR status because they lack sufficient ties with the U.S. indicating that they do not consider the U.S. to be their country of permanent residence. An alien may have multiple residences as a LPR, however, in order to keep his/her green card, he/she must retain their U.S. residence as their permanent one.
Therefore, all LPRs who wish to keep their green cards should take the necessary steps in accordance with the above to establish sufficient facts evidencing that they are maintaining strong ties with the U.S. and retaining the U.S. as their permanent home.
Necessary Steps to Assure Continuity of LPR Status
A LPR who will travel abroad for a considerable length of time should take certain steps to assure that his/her permanent resident status will not be lost.
a· Filing Tax Returns as a U.S. resident
Under all circumstances, a LPR must file tax returns as a U.S. Resident Alien annually with the IRS. To properly file such a tax return, the LPR must claim his/her worldwide income in the return. Filing a tax return as a resident alien does not necessarily mean that the alien must actually pay income taxes if he/she is employed overseas, because treaties and foreign tax credits may minimize the tax amount actually paid to the IRS. Filing tax returns as a non-resident alien will raise a rebuttable assumption that the alien has abandoned his/her U.S. permanent residency.
b· Strong family ties in the U.S.
If a LPR is employed abroad or has to travel overseas for a considerable length of time, it is preferable for his/her immediate family members, including any spouse, children, and parents, to remain in the U.S. Documentation of strong family ties to the U.S. shows the LPR's intention to keep his/her permanent resident status.
d· Overseas employment
Employment abroad is the most common reason that LPRs are absent from the U.S. for an extended period. A written statement from the employer, or an employment contract identifying the length and term of the overseas job, will help provide objective facts for the analysis of BCIS with regard to the LPR's intention to retain his/her permanent resident status. In addition, if possible, a statement that the LPR will be transferred back to the U.S. after the completion of the overseas employment will be very helpful.
e· Other strong ties with the U.S.
Even if a LPR is engaged in overseas employment and/or has close family members in the U.S., it is advisable to maintain as many ties with the U.S. as possible. If a LPR is not engaged in overseas employment and has no family members in the U.S., he/she must be able to establish other strong ties. Ties with the U.S. which evidence that an alien retains his/her U.S. permanent residence are listed as follows:
1. Maintenance of a mailing address in the U.S.
A LPR should maintain a mailing address in the U.S. to receive mail. The LPR can designate his/her mailing address at the home of a relative or friend, or at the place where the LPR owns real property.
2. Keep a driver's license and renew it timely
A LPR should maintain a valid driver's license throughout the period when he/she is absent from the U.S.
3. Maintain a bank account in the U.S.
Before a LPR departs from the U.S., he/she should open a bank account with a U.S. bank, leave it open and use it during the stay abroad. The monthly bank statement is very helpful to document strong ties with the U.S.
4. Use a credit card
Before a LPR departs from the U.S., he/she should apply for and obtain a credit card issued by a U.S. bank. Consistent use of the credit account will help to establish that the LPR has strong ties with the U.S.
5. Pay a mortgage
While a LPR is staying outside the U.S., he/she should pay any house mortgage or car loan timely, and keep all records of payment.
6. Maintain professional or social memberships
If a LPRÂ holds membership with Â any professional association in the U.S., he/she should keep ties with the association, which includes paying dues or fees timely, receiving journals or attending annual meetings.
f· Document good reasons for your absence from the U.S.
If a LPR is not employed abroad and no family members are present in the U.S., the LPR should be prepared to give good reasons with strong documentation for a prolonged absence, especially when the LPR has not established other strong ties with the U.S. This situation often arises when an alien becomes a LPR and before he/she establishes firm roots in the U.S. Good reasons for being absent from the U.S. include but are not limited to: taking care of a sick family member in your home country, taking care a of family business abroad, liquidating overseas assets, administering the estate of a deceased relative, etc. Regardless of the circumstances, these reasons must be well-documented.
g· Reentry Permit
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 allows a permanent resident of the U.S. to reenter the U.S. after traveling abroad for longer than one year but less than two years. As discussed above, were a LPR to travel abroad for a period longer than one year, he/she faces a risk of denial of his/her admission into the U.S. on the ground that he/she has abandoned his/her permanent resident status. A Re-entry Permit is designed to solve this problem.
In addition, a Reentry Permit serves as a passport for a legal permanent resident of the U.S. if he/she has no passport and cannot obtain one from the country of his/her nationality.
For more information about Reentry Permits, see reentry permit.
h· Preserving Residence for Naturalization Purposes
Some LPRs believe that to keep their legal permanent resident status they must be physically present within the U.S. for at least half of every year from the time that they obtain permanent residency forward. This is not correct. A prolonged absence from the U.S. will break the continuity of a LPR's residence in the U.S. for naturalization purposes, even while it may not affect the LPR's ability to return to the U.S. as a permanent resident.
In order to become a naturalized citizen of the U.S., a LPR must reside in the U.S. for a continuous period of five years after lawful admission to the U.S. as a permanent resident and prior to his/her application for naturalization. If an alien is married to a U.S. citizen, he/she must reside in the U.S. for a continuous period of three years following lawful admission to the U.S. as a permanent resident and prior to his/her application for naturalization. In addition, the LPR must physically reside in the U.S. for at least half of the period required for continuous residence. However, some aliens are exempted from these requirements, such as the spouses of U.S. citizens who are U.S. military personnel or have overseas employment with U.S. employers