In the eyes of U.S. immigration authorities, being a permanent resident implies having the intent to make the U.S. one’s primary residence. If one stays outside the U.S. for too long, the prolonged absence may constitute abandonment of permanent residency. Yet, many permanent residents maintain businesses abroad and must make frequent travels outside the U.S. The challenge here is to understand the rules concerning abandonment, so that one can plan their travels intelligently.
It’s About More Than Just Time…
When a permanent resident returns from a prolonged absence abroad, customs officers look at a few factors to decide whether the travel abroad was truly “temporary” and if abandonment has occurred. Do the permanent resident’s close family members live in the U.S.? Does the permanent resident work in the U.S.? Maintain the bulk of their finance in the U.S.? Hold membership in local organizations, such as clubs, church, or even PTA? Pay taxes in the U.S.? Pay mortgages, rent, bills, insurance, maintain financial accounts in the U.S.?
Afterall, abandonment is ultimately an issue of intent. People’s lives are complicated, so the U.S. government is bound to take a holistic look at a permanent resident’s life before accusing abandonment. Should this issue come before the court, the government has the burden to establish that abandonment has occurred by “clear, unequivocal, and convincing evidence.”
Consider a permanent resident who, because of a terminally ill parent too weak for international travel, is forced to stay outside the U.S. for over a year until the parent’s passing. During this time, the permanent resident continues to run his U.S. business remotely, pays tuition for his children to American schools, and relies on his spouse to maintain their U.S. home. To a reasonable person, this is a much more sympathetic case compared to a permanent resident who runs his business in Asia, has multiple residences in China, has no family in the U.S., and only makes brief visits to U.S. for leisure every couple of months.
…But Time Plays a Part
Despite the complex factors discussed above, time still plays a part in abandonment issues. The key periods are 180 days (six months) and one year.
If one’s travel abroad doesn’t exceed six months, by law, they are not seeking re-admission when returning to the U.S. In practice, this means that customs officers are less likely to explore issues of abandonment during entry. Conversely, travels that exceed six months will invite more questions.
If the travel abroad exceeds one year, then the green card is invalidated. Department of Homeland Security’s position is that this also constitutes abandonment of permanent residency. That decision isn’t final – the permanent resident will have a chance to defend their case before immigration court. As discussed above, the government must meet a high bar to establish abandonment.
Reentry Permit
For those plan to stay outside the U.S. for up to two years, it helps to first obtain a reentry permit by submitting I-131 to USCIS. Reentry permit allows for travels outside for up to two years for specific purpose, which supersedes the standard timeline of six months and one year discussed above. If the permanent resident’s travel fits the described purpose in the reentry permit, they will have an easier time to establish that their travel above was temporary and no abandonment has occurred.
Conclusion
As our discussion shows, abandoning permanent residency is often a complicated question. For many permanent residents, keeping international travels reasonably short and building a life firmly rooted in the U.S. are enough. Those who have more complex travel needs should consider working with immigration lawyers to minimize risks of abandonment.
We hope this is helpful. If you have any other questions, please contact us. Shiao PLLC is an immigration law firm based in Washington, D.C. We emphasize uncompromising honesty to deliver the best service to our clients.