Immigration Lawyers

Lawful permanent resident status is issued to individuals who intend to permanently live and work in the United States. A lawful permanent resident (LPR) may face a number of issues in maintaining permanent resident status in the U.S., including:

1. Travel Issues
Once a person becomes a lawful permanent resident, the LPR must insure that he or she does not remain outside the United States at any one time for more than six months. If an LPR remains abroad for more than six months but less than one year, the U.S. Customs and Border Protection (CBP) may inspect the LPR as if he or she were an applicant for admission upon return through a port of entry. This means that the CBP will want to be assured that the LPR has not abandoned his or her intention to remain permanently in the United States. The green card is not valid for travel to the United States after a trip of one year or longer. If an LPR needs to be outside the United States for more than one year, it may be possible to do so without jeopardizing the LPR's status, provided that the LPR first applies to the U.S. Citizenship and Immigration Services (CIS) to receive a "Re-Entry Permit." However, the LPR will need to show that he or she has no intention of abandoning permanent residence in the United States. The application must be filed while the LPR is in the United States and, if approved, will permit the LPR to stay abroad for up to two years.

Even with a re-entry permit, and even in the case of travel less than six months at a time, an LPR can lose LPR status if it is determined that his or her residence has been abandoned, taking into account the totality of circumstances. While an LPR is abroad, he/she should maintain active links with this country, such as filing U.S. tax returns as a resident, maintaining bank accounts, holding property, updating a driver’s license, keeping household goods in storage, etc. Documents (receipts, statements, letters, etc.) showing these activities are important forms of proof that an LPR intends to continue residing in this country.

2. Abandonment of LPR Status
One factor has no bearing on the foreign national’s retention of lawful permanent resident status: A return trip to the U.S. once a year for several weeks. Some permanent residents hold the mistaken belief that they can simply return to the U.S. once a year for several weeks in order to continue to be considered permanent residents. Their confusion is based on the rule that a foreign national must return to the U.S. within one year of departure in order to use his or her green card as a reentry document, as opposed to needing some additional documentation such as a reentry permit or a special immigrant visa. Merely returning to the U.S. and using the green card once a year, however, has no bearing on the separate question regarding whether the foreign national has maintained the intention to remain a U.S. permanent resident. Many foreign nationals have lost resident status because, apart from returning to the U.S. once a year, they did not maintain sufficient ties with the U.S. to indicate that they considered the U.S. their permanent home. A foreign national who will be abroad for a considerable period of time must take certain steps to assure that permanent resident status will not be lost.

In all cases, the foreign national must continue to file U.S. tax returns as a resident. This rule does not necessarily mean that the foreign national must actually pay U.S. income taxes if he or she is employed abroad, since tax treaties and foreign tax credits may minimize the amount of tax that actually has to be paid. Even so, the foreign national must file a resident tax return and claim his or her worldwide income on the return, even if he or she can exempt most of this income from taxation. Failure to follow this rule is quite likely to lead to a loss of permanent resident status. Other important steps include:
· The maintenance of a U.S. address, even if it is a subleased space accessible at all times to the LPR at the home of a friend or relative. Even better is the continued ownership of U.S. property. For example, a person assigned abroad may want to rent, rather than sell, his or her U.S. residence.
· If the foreign national is assigned abroad by a U.S. employer, a written statement should be obtained from the employer specifying the terms and length of the assignment. The statement, if possible, should include a statement that the alien will be reassigned to the U.S. upon completion of the foreign assignment.
· If the foreign national is undertaking employment abroad for a foreign employer on a special project or temporary assignment, he or she should obtain an employment contract or written statement specifying the terms and length of employment. If the employment will lead to a transfer back to the U.S. to a U.S.-based affiliate of the foreign employer, the contract or statement should include this fact. If the employment is essentially indefinite, and no contract or statement can be obtained, the foreign national should be especially careful to maintain as many of the other ties to the U.S. as is possible, and possibly defer such assignment until citizenship is obtained.
· The foreign national should leave open and continue to use U.S. bank accounts. For example, some employers, when assigning a foreign national overseas, will continue to pay him or her in U.S. dollars, depositing the amount directly into a U.S. account. Likewise, U.S. credit accounts should be maintained, and the foreign national should continue to renew his or her U.S. driver’s license.
· If the foreign national is not employed by a U.S. employer and all family members are abroad, he or she must be able to document a good reason to be out of the U.S. for a prolonged period, particularly if he or she has not yet established such ties as property ownership and financial transactions in the U.S. This situation sometimes arises when, soon after becoming a resident and before actually establishing firm roots in this country, the foreign national is called upon to take care of family business abroad, such as liquidating personal assets, administering the estate of a deceased relative, or caring for a sick family member. While these reasons for a lengthy absence can be accepted as legitimate, they should be well documented.

3. Preserving Residence for Naturalization Purposes
In order for an LPR to become a naturalized citizen of the U.S., the foreign national must meet certain requirements, including a continuous residence requirement. The foreign national must reside continuously in the U.S. for a period of five years following lawful admission to permanent residence (three years if the LPR is the spouse of a U.S. citizen), and the foreign national must be physically present in the U.S. for at least half of that period.

The following rules apply:
- An absence from the U.S. of six months or more, but less than one year breaks the continuity of the foreign national’s residence in the U.S. for naturalization purposes, unless the foreign national can provide a reasonable explanation for the absence and proof of ties to the U.S. (see above).
- An absence from the U.S. of one year or more automatically breaks the continuity of the foreign national’s residence for naturalization purposes, unless the foreign national qualifies for and has obtained “extended absence benefits.” A break in the continuity of residence for naturalization purposes means that the foreign national must start all over to accumulate the required five (or three) years of continuous residence upon his or her return to the U.S. There is a regulation that may allow the showing of four years and one day (or two years and 1 day for spouses of U.S. citizens) following a break in residence.

Extended absence benefits require:
- Physical presence and residence in the U.S. as a LPR for an uninterrupted period of one year prior to the absence.
- Employment abroad by or under contract with:
o The U.S. government,
o A U.S. research institute,
o A U.S. corporation or majority-owned subsidiary of a U.S. corporation engaged in the development of foreign trade and commerce, or
o An international organization (for which the foreign national was not employed prior to becoming an LPR) of which the U.S. is a member. Please contact our office if you have any questions about this information.