by Alex Park, Attorney at Law (apark@hooyou.com)

Introduction

For some immigrants, being granted lawful permanent resident (“LPR”) status has been likened to a long, hard-fought battle.  However, once granted permanent residency, the story does not end there because permanent residency is viewed upon as a privilege, not a right.  Because of the globalization of the world’s economy and the ease in which people can travel and communicate on an international level, some find it necessary to frequently travel outside of the country.  The duration, frequency, reason and intent for such international travel will factor into whether or not one’s LPR status will be deemed to have been abandoned.  If found to be abandoned, the permanent resident will be stripped of his LPR status and the right of legally staying and work in the US. 

This article will discuss, in particular, how travel outside of the U.S. will be viewed by USCIS in determining whether or not one has abandoned his LPR status.

Law on Abandonment of Permanent Residence

Many clients inquire as to the minimum number of times and length they must return to the U.S. to maintain their LPR status.  However, not only is there no clear cut answer, it is also a highly risky mindset to take.  The idea that as long as one returns to the U.S. within a certain period of time his LPR status will be preserved is a false and frequently fatal myth.  There is no such hard set guideline and in fact, case law is inconsistent at best. 

Two general statutes have led to the false believe that there are absolute timelines.  One law states that a permanent residence card (“green card”) can be used to re-enter the U.S. if returning to 1) unrelinquished, lawful permanent residence and 2) after temporary absence not exceeding one year.  This means basically that if you are out of the country for more than a year, you cannot use the green card as a travel document.  This does not mean that if you return to the U.S. once a year for a few days that the date counter is automatically reset and you can leave the country again.  If USCIS deems that, based on your time spent outside the country, you have abandoned your LPR status, you will lose your green card altogether. (Please note: there are exceptions that allows you to use your green card as a travel document even if you have been out of the country for more than a year.  Such exceptions include medical situation caused unable to travel.)

Another law states that an LPR will be regarded as seeking admission if he or she has been absent from the United States for a continuous period in excess of 180 days.  Again, this does not mean that if an LPR returns for a few days every 6 months, the LPR will not lose his permanent residency.  Although a pattern of returning to the U.S. for a short period of time every 6 months or less for two or three years will likely not have any consequences, a history of such extended absences from the country will have a cumulative effect and increase the risk of being found to have abandoned LPR status.

The actual analysis for whether or not an LPR has abandoned his status is the following:

To qualify as a returning permanent resident, the alien must have acquired lawful permanent resident status, must have retained that status from the time that he acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad.  If the resident is not returning from a “temporary visit abroad,” he will be deemed to have abandoned permanent resident status and be excluded from the United States. A trip is a “temporary visit abroad” if a) it is for a relatively short period, fixed by some early event; or b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.

           
Unfortunately, what this all means is that there is no objective, hard-lined rule.   Instead, the standard of analysis is the “totality of the circumstances” standard, which essentially has resulted in inconsistent and more or less subjective results.  Some of the factors that are included in taking the totality of the circumstances into consideration are:

1. Family ties (in the U.S. and in the foreign country)
2. Property holdings (in the U.S. and in the foreign country)
3. Business affiliations (in the U.S. and in the foreign country)
4. Duration of residence (in the U.S. and in the foreign country)
5. Employment (in the U.S. and in the foreign country)
6. Length and purpose of absence from the U.S.
7. Whether U.S. tax returns have been continuously filed
8. Whether a re-entry permit has been obtained
9. Other factors: club memberships, bank accounts, mailing addresses, mortgages, credit cards, continuous maintenance of a valid driver’s license, etc.

(Since the standard is a totality of the circumstances, USCIS will look at all the factors in favor for and against in making the determination of abandonment of status)

Practical Application

Upon Re-entry

U.S. Customs and Border Protection (“CBP”) officers at airports have become increasingly probing about abandonment.   If a trip outside the U.S. is anything more than short, you may need to demonstrate your ties to the U.S. to the CBP official at the port of entry, if challenged, as well as the fact you intended to return to the country.  Documentation of extensive ties will corroborate that you have always had an intent to return within a relatively short period by some early fixed event or by an event with a reasonable possibility of occurring within a relatively short period.  If the event does not occur within a relatively short period of time, you must still demonstrate that you had a continuous, uninterrupted intent to return to the U.S. 

In the worst-case scenario, if the CBP official finds that you have abandoned your LPR status, you will be charged as not having a valid entry document at the time of admission.  You will then be issued a notice to appear and will have to present your case to an immigration judge.

Case Analysis/ Examples

1. Jane is an LPR and a citizen of South Korea.  She works for a U.S. bank but is offered a position to establish a branch in Korea.  Her employer has explicitly indicated that she will resume a position with the bank back in the U.S. once the branch in Korea has been established and running smoothly.  It is anticipated that it will take two years for the job to be completed.  During the two years, she will be required to come to the U.S. headquarters for the bank for meetings and important company events.  Jane maintains her home in the U.S., her husband and children continue to stay in the U.S., and her husband continues to work in the U.S.

 Although Jane may be out of the U.S. for two years or possibly even more, under the totality of circumstances standard, Jane will have a good chance of maintaining her LPR status.  Although two years is not a “relatively short period of time,” Jane clearly has some hard evidence of her uninterrupted intent to return to the U.S.  Her family will stay in the U.S., she will continue to own her home here, she will frequently visit her employer in the U.S., and she intends to return as soon as the branch in Korea is established and running smoothly. 

2. John is an LPR and a citizen of India.  Encouraged by the booming tech industry in India, John decides to become an entrepreneur and establish a start-up company in India.  John is not married and has no children. Although he owns a home in the U.S., he does not want to see it go to waste due to the slumping housing market and decides to rent it out.  He does intend to return to the country every 5-6 months or so for a few days at a time to meet with venture capitalists to help fund his company.  He will have contacts with the U.S. and once the business takes off, he plans to establish a U.S. office. 

In this scenario, the longer the time spent away from the U.S., the higher the risk John will have of being found to have abandoned his LPR status and being questioned by CBP at the port of entry.  Each additional trip he makes to India will create an opportunity for him to be questioned once re-entering the country.  Although John returns to the country in 6 months or less quite often, John’s ties to the country are limited and his intentions are questionable.  He has no immediately family residing in the U.S. and the home that he owns in the U.S. is not intended to be his main place of residence because he is renting it out.   Moreover, his trips to the U.S. are brief and the main purpose is to help his company in India.  As a result, John will be at higher risk of being found to have abandoned his LPR status.  If John returns to the country every 5-6 months for a few days for a period of 1 or 2 years, it will likely not have severe consequences, but as mentioned in the previous section, a history of extended overseas stay will have a cumulative effect and provide more evidence to show a finding of LPR status abandonment. 

3. Grace is an LPR who during a 3-year period, spent less than one-third of her time in the U.S.  She spent the majority of her time in China with her husband and son who were waiting for their family-based immigrant visa petition to materialize.  During the time Grace spent in the United States, she worked sporadically for a research institute in California and lived in temporary housing provided by her employer.  

In a similar fact pattern to this, the court actually found that the LPR abandoned his status.  Even though Grace was in China mainly because her husband and son were there waiting for their family-based immigrant visa to be approved and such actions showed intention to return to the U.S., the court in the actual scenario found that the family members were free to reside in the U.S. while waiting for their immigration status. 

4. David filed immigrant visa petitions for his family as soon as he was granted LPR status.  A few weeks later, he returned to Uzbekistan and to his job in that country because he was afraid that if he did not, the government would hurt his family.  He returned to the U.S. a few months later, obtained a re-entry permit, and went back to Uzbekistan for two years to take care of his terminally ill mother.  David never paid income tax in the U.S. and does not have own any property in the U.S.

Based on this fact pattern, it is a very close call.  Although David does not have many ties to this country and was in Uzbekistan far more than he was in the U.S., he applied for immigrant visas for his family and returned to Uzbekistan to take care of his ill mother and prevent harm to his family.  In an actual case with a similar fact pattern, the court held that, although this was a close call, there was enough evidence to show the LPR’s intent to not abandon his status.

Note: Cases 3 and 4 (based on actual cases) are used to illustrate the inconsistent rulings of the court.  In case 3, it is clear that Grace’s intent is and has always been to be a permanent resident of the U.S. and not abandon her status.  However, she wants to remain with her family and return all together after her son and husband have secured their own green cards.  Despite the intentions, some of the other facts not in her favor convinced the court that LPR status was abandoned.  As a result, it is important to have documented evidence of ties to the country when considering an oversea stay for an extended period of time.

Re-entry permits

Re-entry permits can be issued for a period of not more than two years and must be filed while in the U.S.  However, you do not need to wait in the U.S. until the re-entry permit is approved.  A re-entry permit is not renewable but you may return to the U.S. to get a new re-entry permit after two years.  You may have up to almost 6 years of absence from the U.S. but if you are outside the U.S. longer than the period of the permit, you will need a special immigrant visa.

A re-entry permit, in and of itself, does not prevent a finding that you have abandoned your permanent residency status; it only prevents a CBP official from relying solely on the duration of an absence or absences while the permit is still valid to determine whether or not you have abandoned your LPR status.  However, a CBP official may still investigate a lengthy absence, not as a reflection of intent, but to find out whether activities outside the U.S. could have any bearing on admissibility.  An official can also determine whether the permit was produced by fraud or misrepresentation.

Therefore, a re-entry permit, although not foolproof, can work as an “insurance policy.”  It can act as a strong indication of the departing resident alien’s intent to return to the U.S. on a permanent basis.  It does not cancel out damage but can work to minimize punitive or long-lasting effects.

Conclusion

When determining whether your situation will be determined by USCIS as abandonment of your LPR status, you should look at two principles: 1) actions speak louder than words and 2) the “smell test.”   No matter what you tell the CBP officer at the port of entry, if you do not have documentation or hard evidence showing that your intent has always been to remain a resident but for some foreign affair you had to attend to, it may be a very unpersuasive argument.  If you are unsure, put yourself in the shoes of an immigration officer and ask yourself if it passes the “smell test.”  Do the facts sound like the LPR legitimately wants to be a permanent resident of the U.S. or does it seem like the LPR just wants to take advantage of the benefits of LPR status without any of the actual commitments?   Also, in practice, receiving a reentry permit is always advised.

As mentioned previously, the standard currently in effect prevents Zhang & Associates from providing you with a definite yes or no answer based on your circumstances.  We can only provide you with guidance regarding whether your situation, based on the totality of the circumstances, would likely or unlikely merit an abandonment of your LPR status.   As a result, if you plan to leave the country for a prolonged period of time, you must take into consideration whether or not the risks of possibly being seen as having abandoned your LPR status outweighs the reasons for your spending an extended period of time outside of the U.S.  If your circumstances are complicated, then please consult with any one of the experienced attorneys here at Zhang & Associates.