Before you start Celebrating - Maintaining Your Permanent Residency

Published on January 2012 | By
Shahzad Ahmed - Orlando Immigration Attorney with NeJame Law So you finally got it! Your green card. After so much wait and effort,
the day is here. But wait. What? There are travel restrictions? One of the most common concerns of lawful permanent residents is their
ability to travel to their country of origin for an extended period of
time. This happens most frequently to parents, who acquired
permanent residency through their U.S. citizen son's or daughter's petition, but the parents
are not quite prepared to be uprooted from their country of childhood. As a result, they spend prolonged time in their "home" country,
leading to an extended absence from the U.S. However, on their way back,
they are greeted by an unfriendly Customs and Border Protection (CBP)
officer who interrogates them extensively about why they were away for so long.

Why does this happen? Why can't I stay abroad for as long as I want as
a permanent resident (green card holder)?

The main reason why a permanent resident is restricted in his or her absence
from the U.S. is that the U.S. immigration law does not permit dual residency.
Thus, when a permanent resident is living or working in a foreign country,
then an issue arises as to where that person is actually residing. However,
enforcing this restriction is problematic as shown below.

So can I avoid the whole problem by returning to the U.S. within one year?

Many permanent residents believe that as long as they return to the United
States within 1 year, then they will be able to preserve their residency.
However, this one year rule mentioned in the regulations applies to the
invalidation of the "green card." Moreover, pursuant to the
immigration statute, if the applicant has been absent from the U.S. for
a continuous period of more than 6 months, then he is deemed to be seeking
admission when he returns at the port of entry. The applicant may be successfully
admitted upon showing sufficient ties to the U.S.

So what if I live abroad but keep returning to the U.S. within every six
months? Will that maintain my U.S. residency?

Not necessarily. Often permanent residents do this and spend only a couple
of weeks or months in the U.S. out of the whole year. While avoiding a
continuance absence in excess of 6 months from the U.S. prevents the government
from deeming you as "seeking admission," the government may
still make a case of abandonment by looking at the overall factors, i.e.
the amount of time actually being spent in the U.S., where the family
ties are, where the property and employment ties are, and the purpose
for the absence from the U.S. Thus, if a permanent resident is absent
for a significant amount of time, even though not continuously in excess
of 6 months, he or she must still be careful about abandonment issues.
It is best to consult an experienced immigration attorney to evaluate
his or her specific circumstances.

What if I get a re-entry permit? Will that protect me from abandonment problems?

It will, to an extent. According to the regulations, a permanent resident
who intends to remain abroad for an extended period of time, may apply
for re-entry permit. The application for this permit must be filed prior
to departing the United States. The legal effect of this permit is that
upon your return, the CBP may not consider the duration of your absence
as a reason for abandonment. However, the CBP may still consider other
factors, i.e. where your family ties are, where your property and employment
ties are, and the purpose for your absence. Thus, while a re-entry permit
provides a certain level of protection, it is not a complete shield from
possible abandonment problems.

If upon my return, the CBP believes that I abandoned my residency, can
they deport me at the border?

As a lawful permanent resident, you would have the right to a hearing before
an immigration judge. You will be granted this opportunity by the CBP
officer. When you do get the hearing, you will be permitted to present
any relevant evidence to the judge in order to establish that you did
not intend to abandon your residency. According to case law, abandonment is a matter of "intent." The
CBP officer and the immigration judge should examine various above-mentioned
factors in determining whether one abandoned his or her residency.

How do I maintain my residency to be eligible for citizenship?

When applying for naturalization, the applicant must demonstrate that he
or she not only has been a U.S. resident for the last 5 years (or 3 years
if married to and residing with a U.S. citizen spouse), and that he or
she maintained continuous residency until the time of admission to citizenship. Once again, if the applicant has been absent from the U.S. for a continuous
period of 6 months, then there is a legal presumption of abandonment.
The applicant for naturalization may rebut this presumption by showing
sufficient ties to the U.S. Moreover, for naturalization purposes, if an applicant has been absent
from the U.S. continuously for 1 year, then he or she has conclusively
abandoned his or her residency. In such case, the person must reestablish
residency by waiting 4 years and 1 day (or 2 years and 1 day, if subject
to the 3 year residency requirement) after returning to the U.S., before
filing for
naturalization.

What documents must I have to present upon my return to the U.S.?

As a lawful permanent resident, you must present one of the acceptable
forms of evidence of lawful permanent residency. To name a few, the regulations
allow you to present, the resident alien card (“green card”),
I-551 stamp on your passport, a notice of action from the Department of
Homeland Security acknowledging your adjustment of status, a permanent
residency visa, and more. To this end, it is critical to present unexpired
documents or evidence. While the CBP manual encourages the officers to
examine their internal data systems for evidence of permanent residency
in case the immigrant does not have the proper documents in possession,
for obvious reasons, an immigrant should not travel without proper unexpired
documents. We hope that this article has acquainted the reader with some of the commonly
recurring issues for maintaining residency. While acquiring U.S. residency
is a dream for many, it is crucial to know the rules for preserving it.