In the current climate, it is important to protect your legal permanent resident (LPR) status. This post provides some practical recommendations. In order to ensure continuity of status, please ensure that you are not outside of the U.S. for more than six months at a time. Should the need to be outside the U.S. for longer periods of time arise, please consult our office.
Abandonment of LPR Status
Generally, a person with lawful permanent resident (“LPR”) status in the United States may travel freely in and out of the United States. A returning LPR may present a “green card” for admission to the United States if coming back to an “unrelinquished” lawful permanent residence in the United States after a “temporary absence” abroad not exceeding one year. It is important to note that LPR status may be lost, or deemed abandoned, if the Department of Homeland Security (“DHS”) believes that the LPR no longer intends to reside permanently in the United States. The issue of abandonment of LPR status is extremely complex, and decisions have varied from court to court, based partly upon the facts and circumstances of each case. Please note that maintaining continuity of residence for naturalization (citizenship) purposes is a different issue from maintaining permanent resident status. This post will address only the issue of maintaining LPR status.
Permanent resident status is not automatically lost by a lengthy absence abroad, but an extended absence is one factor that is taken into account by the DHS in judging the LPR’s intentions. The key factor in determining whether an LPR has “abandoned” his or her permanent resident status is the “LPR’s intentions.” However, a mere statement of intent to remain a U.S. resident is not controlling. The DHS can only look at objective criteria in order to determine the LPR’s subjective intent.
DHS and the courts generally look at the following factors to determine an LPR’s intentions:
- The length of the person’s absence from the United States;
- The purpose for the person’s departure;
- The existence of facts indicating a fixed termination date for the stay abroad;
- A driver’s license issued within the past year reflecting the same address as that recorded on immigration documents;
- The continued filing of U.S. tax returns as a resident of the United States;
- The name and address of a U.S. employer and evidence that a salary has been paid in the United States within a reasonable period of time;
- Evidence of property ownership, whether real or personal, in the United States;
- The location of the LPR’s close family members;
- The location and nature of the LPR’s employment, e.g., U.S. versus foreign employer, permanent versus temporary employment abroad, fixed-term employment, etc.;
- Whether the LPR applied for a reentry permit before leaving the United States;
- Where the LPR’s children have been educated.
DHS inspection officers may question an LPR in re-entry with regard to his or her intent. These include possession of a round-trip ticket, immigration entry documents showing the U.S. address as a hotel or “in care of” someone else.
Unfortunately, there is no guarantee that anything but continued residence in the United States will ensure that a person will retain his or her LPR status. For LPRs who must depart from the United States for employment or other reasons and wish to protect their LPR status, we would strongly recommend that they take the following steps:
- Speak with an attorney regarding applying for a reentry permit before departing from the United States if the person will be out of the country for more than 6 months, or for extended periods two years in a row;
- Retain any real property in the United States, particularly property in which they have actually resided;
- If they own no U.S. real property, maintain a U.S. address, even if it is the home of a friend or relative;
- If the LPR will be employed abroad by a foreign corporation, obtain a letter from the employer indicating the length of time of the foreign assignment, including, if possible, a statement indicating that the employee will be transferred back to the United States as of a definite date;
- Keep bank accounts and credit cards active in the United States;
- Keep their U.S. driver’s license current, listing a U.S. address where they have actually resided;
- File federal income tax returns as a permanent resident;
- If possible, become a naturalized citizen before embarking on a lengthy absence from the United States.
Validity of the “Green Card”
Although previously the actual “green card” was issued for an indefinite time period, the cards are now issued with a validity of up to ten years. After ten years, if the person has not become a U.S. citizen, they must renew the card. Please note that an LPR does not lose his or her LPR status when the card expires, but he or she must apply for a new card to evidence their LPR status. This gives the U.S. government the ability to ensure that the LPR has in fact maintained his or her permanent resident status in the United States, and is filing appropriate tax returns, etc.
Under the existing provisions of the Immigration & Nationality Act, an alien who remains in the United States for a period of 30 days or more is subject to the requirements for registration of aliens. All LPRs who are subject to the registration requirements must notify U.S. Citizenship and Immigration Services (“USCIS”) of any change of address within 10 days of that change. In order to notify USCIS of the change of address, each LPR must complete Form AR-11, Change of Address, which may be submitted online through the USCIS website, www.uscis.gov.
Generally, persons who obtain LPR status through employment are eligible to apply for U.S. citizenship five years after they obtain LPR status. If LPR status was obtained through marriage to a U.S. citizen, the LPR is generally eligible to apply for U.S. citizenship three years after obtaining LPR status. There are residency requirements as well — two rules of thumb are: (1) that the LPR must have been physically present in the United States for at least 50% of the time they have held LPR status; and (2) they have not been absent from the United States for more than six months at a time (even if they have obtained advance parole) within the previous five years.
Please note that case law has held that failure to file federal U.S. tax returns as a resident can be evidence of an intention to abandon LPR status. In addition, all U.S. residents must report to the IRS any foreign bank accounts with an excess of $10,000. It is essential that the LPR also consult with his or her international tax/accounting consultants in order to be fully advised as to the relevant tax issues. Please note we do not provide legal advice concerning taxes, so be sure to consult a tax professional.
Now that you have been granted LPR status, you should contact the Social Security Administration at www.ssa.gov to advise them of the change in your immigration status. You will need to provide them with a copy of your permanent resident card, so that they can update their records and issue a (new) social security card to you without any restrictive language.
When an LPR knows that he or she will be leaving the United States and will not be able to return within the next year, they can apply for a “reentry permit” with the DHS before departing from the United States. A reentry permit is an entry document valid for up to two years from the date of the person’s departure from the United States. A person must arrange to return to the United States prior to the expiration of the reentry permit in order to make an application for a new permit, which also must be made when the LPR is physically in the United States. Please note, however, that each new application for a reentry permit will be subject to increasing scrutiny by the DHS with regard to the LPR’s intentions, and so should not be considered a long-term solution.
Please note also that a reentry permit does not guarantee the LPR’s readmission to the United States. It does certify that the person’s trip abroad has been accepted by the U.S. government as temporary. Failure to pay U.S. income taxes as a resident during the period of absence has been found to demonstrate an intention contrary to that required of an LPR.
LPR status does not confer the right to register to vote or vote in national, state or local elections that require a voter to be U.S. Citizen, such as Presidential and Congressional elections. Please be aware that there are criminal penalties for voting when you are not a U.S. Citizen. Penalties for voting in elections limited to U.S. Citizens include, but are not limited to, deportation from the U.S. You may be asked to register to vote when applying for a driver’s license. Please ensure that you do not register at that time.
Renunciation of LPR Status
Renunciation is the intentional surrender of LPR status. An individual who truly, willfully, and voluntarily desires to give up LPR status should do so, in an affirmative manner, on DHS Form 1-407. Renunciation of LPR status does not prejudice later applications by the employee for LPR status. However, should the individual later wish to again become an LPR, eligibility and an available visa must exist at such time. Please note that immigration laws are constantly changing, and while it may be a rather simple matter for certain individuals to attain LPR status now, we cannot predict whether they will be eligible for such status in the future.
Renunciation of LPR status may relieve the individual of the obligation to file a U.S. resident tax return, unless the individual is required to do so for other reasons, most likely related to the “substantial presence” test. However, recent changes in the law impose additional tax liabilities. We recommend that LPRs consult their tax advisor with questions relating to this issue.
The law involving retention of LPR status has evolved primarily through case law, and consequently has not been consistently applied or interpreted. Historically, only a small number of people with LPR status were absent from the United States for extended periods of time. As businesses have become more international, and people are regularly transferred around the world, these issues have become more relevant, resulting in a wide variety of interpretations of the law. Looking at relevant case law and regulations, we can offer only guidelines, not hard and fast rules, as to how employees and their family members who must be absent from the United States for extended periods of time can retain their permanent resident status. We trust the recommendations set forth above will provide some guidance but please contact us with any concrete plans you may have.