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Thursday, November 11, 2010

Immigration ABCs: Traveling Outside the U.S. as a Greencard Holder (U.S. Permanent Resident)


Good morning, readers! Today, we are sharing with you some of the Frequently Asked Questions we receive at Van Wormer Law concerning U.S. permanent residents (greencard holders, LPRs) traveling outside the United States.

As you may already know, once you receive your greencard, you must maintain your permanent resident status or else risk losing / abandoning it.


USCIS says that you may have abandoned your permanent resident status if you:
  • Move to another country intending to live there permanently
  • Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year
  • Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year
  • Fail to file income tax returns while living outside of the United States for any period
  • Declare yourself a “nonimmigrant” on your tax returns
It is in the context of maintaining permanent residence that we encounter the most questions about traveling outside the United States as a permanent resident. USCIS has a good overview of the topic, but the following issue is not fully addressed there.

As a U.S. permanent resident, is there a specific time-period of travel outside the U.S. you should be aware of?
Yes. More than one, actually.

To start, the basic question that USCIS considers is "did this person intend to make the United States his or her permanent home?" If USCIS determines that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status. Abandoning your permanent resident status makes you removable (deportable) under United States law as described in Section 237 or 212 of the Immigration and Nationality Act (INA).

To determine whether your travel outside the U.S. has caused you to abandon your permanent resident (greencard) status, USCIS uses a general test of whether you have been absent from the United States for more than one year. However, USCIS may find abandonment in trips of less than a year if it believes you did not intend to make the U.S. your permanent home.

Note: in practice we have observed that if you have been outside the U.S. on a trip that is SIX MONTHS or longer, USCIS is more likely to question your intent to keep your permanent resident status when you attempt to return to the U.S. If that happens, it can be helpful to provide evidence of your intent to make the United States your permanent home.

Here are some of the types of evidence that USCIS uses to determine your intent:

(1) Whether you filed for a I-131 travel document / reentry permit before you departed. Generally, a reentry permit issued to a permanent resident shall be valid for two years from the date of issuance. However, if since becoming a permanent resident you have been outside the United States for more than four of the last five years, the permit will be limited to one year, with exceptions.

(2) [ONLY for those employed outside the United States with a qualified employer:] Whether you have filed a N-470 application to preserve your residence for naturalization purposes.

(3) Whether you maintain a U.S. mailing address, keep U.S. bank accounts, and hold a valid U.S. driver’s license. Although these can be the easiest things to obtain to help prove your intent to make the U.S. your home, you must generally establish them before you leave for your travels outside the U.S.

So, plan ahead! Establish a U.S. mailing address, bank account, driver's license, and anything else you can use to show your ties to the United States (like investing in the U.S. stock market, becoming a member of a local civic group or organization...) WELL BEFORE you leave.

(4) Whether you file your income tax returns and report your income to the U.S. Internal Revenue Service and state taxing authorities. If you are a permanent resident, ALWAYS pay your taxes (consult a certified public accountant if you need assistance), but on your tax forms never file as a "nonimmigrant" or "nonresident." More IRS information can be found here.

Remember, obtaining the travel document (I-131) or any of the items above does not guarantee you entry into the United States upon your return; but the more of them that you have, the more able you will be to establish your intention to permanently reside in the United States.

If you are a greencard holder considering taking a trip outside the United States, or if you have any questions about maintaining your permanent resident status, please do not hesitate to speak with a qualified immigration attorney. You may contact our office at (703) 244-6733 or contact@vanwormerlaw.com.

Remember to join us next time for more Immigration ABCs!

Please Note: The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

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