Gabrielle M. Buckley
Lawful immigrants often wait years to obtain lawful permanent resident (LPR) status in the United States, or what is commonly referred to as a “green card.” Historically, relatively few people with LPR status absented themselves from the United States for extended periods of time. As businesses have become more international and employees are regularly transferred around the world, maintaining LPR status has become an important issue. After receiving LPR status, a person may opt to pursue a short-term career opportunity abroad or return to their home country for a few years for personal or family reasons. Many, however, forget the important requirement of maintaining their LPR status after it has been obtained.
This article will provide practical recommendations to assist LPRs in maintaining their lawful status if they are required to remain outside of the United States for an extended period of time. Additionally, this article will discuss the option of voluntarily surrendering LPR status, and its ramifications. We note that maintaining continuity of residence for naturalization (citizenship) purposes is a different issue from maintaining LPR status. This Article will address only the issue of maintaining LPR status. In order to ensure continuity of status for citizenship purposes, an LPR should not be outside of the United States for more than six months at a time.
Maintaining LPR Status
Under the Immigration and Nationality Act, an LPR is accorded the status of a “special immigrant” who is “lawfully admitted for permanent residence and one who is returning from a temporary visit abroad.” Generally, a person with LPR status in the United States may travel freely in and out of the United States. A returning LPR may present a Permanent Resident 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. LPR status may be lost, or deemed abandoned, if the United States Department of Homeland Security (“DHS”) believes that the LPR did not intend 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 upon the facts and circumstances of each case. LPR status is not a legal right but a revocable privilege, which means that an LPR may lose his or her LPR status. Some LPRs incorrectly believe that as long as they enter the United States within a 12 month period they will not be at risk of losing their status. The fact that an LPR enters the United States once a year, or even more frequently, for short visits may not be sufficient to maintain status, and s/he could still be found to have abandoned his or her LPR status. On the other hand, an LPR who lives outside the United States for over a year is not regarded as automatically abandoning his or her green card either. This may sound confusing but, in essence, whether one has abandoned his or her LPR status depends on the “intent” of the LPR rather than the length of time outside the United States. Intent of the LPR is a key factor, and DHS and the courts will look at whether the LPR intended to return to the United States to permanently reside.
Once a colorable claim to LPR status is made at the port of entry, the burden is on the DHS to prove the LPR has abandoned his or her permanent residence by clear, unequivocal, and convincing evidence. A colorable claim is made when the LPR presents an unexpired Permanent Resident Card and asserts that s/he has not abandoned his or her residence in the United States. The DHS and courts generally look at the following objective 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 re-entry permit before leaving the United States;
• Where the LPR’s children have been educated.
The DHS Examination Handbook also sets forth items for inspection officers to look for when questioning an LPR with regard to his or her intent. These include possession of a round-trip ticket when entering the United States, and immigration entry documents showing the U.S. address as a hotel or “in care of” someone else. Courts have not looked favorably upon LPRs who take jobs abroad or enroll in long-term study abroad, such as a Ph.D. program. On the other hand, courts have been more understanding as to LPRs who need to remain overseas with family members who were under political threat or terminally ill.
Recommendations to Protect LPR Status
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 LPR’s who must depart from the United States for employment or other reasons and wish to protect their LPR status, we recommend that they take the following steps:
• Obtain or apply for a re-entry permit before departing from the United States if the person will be out of the country for more than 10 months.
• Retain any real property they own 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 U.S. driver’s license current, ideally 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.
Other Issues Related to Maintaining LPR Status
LPR’s generally are required to file federal tax returns as “residents” of the United States. In fact, case law has held that failure to file a federal U.S. tax return as a resident can be evidence of an intention to abandon LPR status. An LPR is considered a resident for income tax purposes. Therefore, even if the LPR does not earn any income in the United States, but earns income overseas in another currency, s/he is required to report his or her worldwide income as a U.S. resident. Depending on whether the United States has a tax treaty with the LPR’s country of citizenship, the LPR may be eligible for foreign tax credit to avoid double taxation. It is essential that the LPR consult with international tax/accounting advisors on all tax implications.
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, the LPR may apply for a “re-entry permit” with the DHS before departing from the United States. A re-entry permit is an entry document valid for up to two years, and the LPR must arrange to return to the United States prior to the expiration of the re-entry 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. Each new application for a re-entry permit will be subject to increasing scrutiny by the DHS with regard to the LPR’s intentions; therefore, this should not be considered a long-term solution.
A re-entry permit does not guarantee the LPR’s readmission to the United States. It does certify that the U.S. government has accepted the person’s trip abroad as temporary. It should also be mentioned that an absence of more than one year from the United States will break the period of continuous residence required to become a citizen, even if a re-entry permit is issued.
Abandoning LPR status
Conversely, with increasing labor mobilization to fast growing economies such as India and China, many LPR’s find it burdensome to fulfill the responsibilities and requirements of maintaining LPR status and voluntarily abandon their status. A person may voluntarily abandon LPR status by filing Form 1 407 at a U.S. Consulate in the LPR’s country of residence or at the port of entry, and turning in his or her Permanent Resident Card. Abandonment of LPR status is an irreversible process. Individuals who surrender their LPR status may be entitled to travel on a non-immigrant visa to the United States in the future or pursuant to the Visa Waiver program, if applicable.
Abandoning LPR status can have serious tax implications. Certain long-term residents who have held LPR status for any part of 8 of 15 calendar years ending in the year they lose their status by abandonment or revocation are required to pay an “exit tax” on all global assets pursuant to The Heroes Earnings Assistance and Relief Tax Act of 2008.
“Covered” individuals are generally those with a net worth of $2 million or those who have paid $147,000 in income taxes in the past five years. LPRs who think that they might abandon their LPR status at some point should contact their tax professional prior to the 8th year of LPR status.
The law involving retention of LPR status has evolved primarily through case law, and has not been consistently applied or interpreted. Consequently, we can offer only guidelines, not hard-and-fast rules, as to how LPR’s who must be absent from the U.S. for extended periods of time may retain their permanent resident status. Under certain circumstances, an LPR may choose to either apply for U.S. citizenship or abandon their LPR status prior to their departure.
Hanishi T. Ali is the founder and managing partner at Mithras Law Group, based in Greater Boston, and is a qualified attorney in the United States, and a registered Solicitor in England and Wales, as well as Scotland. She can be contacted at email@example.com.
Gabrielle M. Buckley is a Shareholder with Vedder Price P.C. and chairs its Business Immigration Practice Group. Ms. Buckley serves on the ABA Commission on Immigration and is a past chair of the International Section’s Immigration & Nationality Committee. She can be reached at firstname.lastname@example.org.