Green Card Holders Can Stay Outside the Us for How Long

What practise you need to do to preserve your status as a lawful permanent resident (LPR)? This question is critical now more than ever for persons unable to travel due to the coronavirus (COVID-xix) pandemic or related travel restrictions. U.S. Customs and Edge Protection has non provided any special guidance related to readmission to the U.South. following prolonged stay abroad due to the pandemic. And the State Department reports that SB1 returning resident visa "criteria and guidance remain unchanged…. Each case must exist assessed on its own merit utilizing the existing criteria."

If you lot are abroad for 6 months or more than per year, you risk "abandoning" your light-green card. This is especially true after multiple prolonged absences or later on a prior warning by a CBP officeholder at the drome.

ane. Introduction

In that location are many legitimate reasons a green menu holder may need to be abroad temporarily, such as if you need to intendance for an sick family member, take a temporary job abroad, study away, or liquidate avails like a business or real estate abroad.

Still, CBP officers at the airport are allowed to question light-green card holders near whether they have given up (abandoned) their LPR status. The officeholder may enquire questions such every bit:

• Where have y'all been outside the U.S.?
• For how long?
• What were you doing there?
• Why are you coming to the U.South. at present?
• What ties did you keep to the U.S. during your absence?

CBP officers have access to reckoner records showing your prior entries and exits from the U.S.

If it appears y'all accept abandoned your LPR condition and you're not willing to voluntarily give information technology upward, the CBP officer may refer you to Immigration Court for a judge to determine whether you have lost your LPR status.

The almost conservative strategy to avoid abandonment (and to come across the "continuous residence" requirement for for naturalization, if you wish) is to keep the U.Due south. equally your main domicile by sleeping more nights in the U.Due south. than abroad.

Only this may non be practical for everybody. If you're going to have more extensive absences from the U.S., what you need is a programme that you can rely on to preserve your LPR status and eligibility for naturalization, if yous wish. That plan may well include deepening and documenting your ties to the U.S., clarifying the evidence of the "temporary" purpose of your stay abroad, and maybe applying for a reentry permit. Our law firm has extensive experience assisting clients in cartoon up plans and guiding LPRs to preserve their status. Feel gratis to schedule a consultation.

And if you have already come across serious problems–namely, you have already stayed abroad for over one year straight without obtaining a reentry let or you take been issued a notice to appear in Clearing Court or warned by CBP, our firm can advise you well-nigh remedying the trouble.

2. The Judicial Definition of "Temporary"

There are many myths about how long an LPR can stay abroad. The real dominion is that an LPR who makes trips abroad that are not "temporary" loses that status. Unfortunately, in that location is no specific time limit for what "temporary" means. Hither's the almost curtailed definition of temporary, from the U.South. Court of Appeals for the Ninth Circuit:

we hold that a permanent resident returns from a "temporary visit abroad" only when (a) the permanent resident's visit is for "a menstruum relatively short, fixed by some early event," or (b) the permanent resident's visit will end upon the occurrence of an event having a reasonable possibility of occurring within a relatively brusque catamenia of time. If every bit in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the result does non occur within a relatively short flow of time, the visit volition be considered a "temporary visit abroad" only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit.

Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986)

Since the judicial definition of "temporary" is nebulous, here are some guidelines for avoiding abandonment of LPR status:

• Beingness away for over 180 days is i (but not the simply) fashion to invite the CBP officer's scrutiny as to whether you lot've abandoned LPR status.
• The safest way to avoid abandonment is to ensure that each year you are in the U.Southward. more than whatever single other country. For case, if you lot are in the U.Southward. 6 months a year, in French republic 4 months a year, and in Singapore 2 months a year, information technology is clear that your main home is in the U.S. (Your time in the U.S. doesn't have to exist continuous). This is the basic dominion. Information technology comes from the Immigration and Nationality Deed's definition of "residence," which means one's "identify of general habitation" or, in other words, one'due south "main, actual dwelling place in fact." INA § 101(a)(33).
• If you can't practise that, then yous should document with clear evidence that your stays abroad are for a articulate, temporary purpose and that you have retained ties to the U.Southward. that–in comparison to your ties abroad–evidence your intent to return to alive here one time your temporary stay abroad is over.
• If you or your U.S. citizen spouse is working away for a U.South. company, see LPR Living with a Citizen Spouse Employed Abroad past an American Visitor: Whatever Risk of Abandonment?

3. Is There a "Return Every 6 Months" Rule"?

Yes and no. In that location is a half dozen-calendar month rule of a sort: INA § 101(a)(13)(C) says that LPRs returning from away don't even count as applying to CBP for "access" (i.e., CBP won't question their qualifications to enter) if they meet the following requirements, among others:

• they have been away for under 180 days; and
• they take not abandoned LPR status by making a trip abroad that isn't "temporary."

My point here is that existence abroad for under 180 days can assist avoid abandonment, but information technology is non enough–the trips abroad must still autumn inside the judicial definition of "temporary." The clearest instance is the "touchdown" situation: somebody who lives away but who briefly "touches downwards" in the U.Due south. one time every 5 months for vacation. This person has abandoned LPR status so should not be readmitted as an LPR, despite keeping every trip away under half dozen months.

4. Keeping a Valid Entry Document

To reenter the U.S. equally an LPR, y'all demand a valid entry documents. A green carte (Form I-551, Permanent Resident Card) is non valid to reenter the U.South. if you have been abroad for i year direct or more.

You tin can plan ahead to avoid problems by applying for a reentry let. As explained below, a reentry permit tin allow you to exist outside of the U.S. for 2 years straight.

But if you've been abroad so long that y'all no longer accept a valid entry certificate, then you volition demand to consider (a) applying at a U.S. Consulate abroad for an  SB-one Returning Resident Visa  by convincing the consular officeholder that the stay abroad was temporary and its extension past one yr was beyond your command; or (b) applying to a CBP officer at the port of entry for a "waiver" of the green card requirement, using Form I-193 and accompanied by proof that that the stay abroad was temporary and that there was "adept cause" for not returning within 1 year. For more nearly these options, meet Keeping Your Permanent Resident Status: Best Practices for Avoiding Abandonment.

5. Applying for A Reentry Permit

Our firm often advises clients to consider applying for a reentry allow if either (a) they are likely to be abroad for one year or more than straight, (b) they are likely to be abroad for more than than half-dozen months straight for two or more years in a row; or (c) they have been warned past CBP that they are at risk of abandonment.

CBP stamps in LPRs' passports warning that their condition is at gamble if they make non-temporary trips abroad. Left: "Advised residency requirements." Right: "Out 5 months, 29 days."

Dissimilar the green menu, which is valid for return afterwards an absence of upward to ane year, the reentry permit is valid for up to 2 years. This is still no guarantee that yous volition be able to reenter the U.S., withal. The reason is that you too have to prove to the CBP officeholder in the airport you haven't abandoned your LPR condition. If y'all have in fact been away for the same temporary purpose described in your reentry permit application, then it will exist presumed that your trip abroad was temporary and yous can be readmitted. If, nevertheless, your stay abroad was for a dissimilar purpose, than you lot can be referred to a judge to determine whether you've abased your LPR status.  Many LPRs take been aggressively questioned by CBP officers in the airdrome on this indicate.

The USCIS Form I-131, Application for Travel Certificate, used to utilize for a reentry permit is deceptively simple. Simply many LPRs decide to hire an experienced American immigration chaser because the related procedures and planning required are complicated enough and the stakes are high enough that they want to minimize the risk of denial.

A few key points:

• The I-131 must be submitted and received past USCIS while you are still in the U.S.
• You lot must remain in the U.S. until your  biometrics (fingerprints) appointment  in connection with the I-131, or you must return to the U.S. for that appointment.
• In some but not all cases it can be helpful to submit with the I-131 evidence that your stay abroad will be temporary and that yous will maintain ties to the U.S. during that stay abroad.
• To reenter the U.S. with the reentry allow, exist prepared to testify evidence that the purpose of your stay away was consistent with the temporary purpose stated in the I-131, and be prepared to back that up with bear witness of the comparative strength of your U.Southward. ties compared to your ties abroad.

For more than, run across our police firm's Guide to Reentry Permits.

six. Proving Ties to the U.S. Outweigh Ties Away

If you've been away for a prolonged period, the CBP officer will recognize that period every bit "temporary" only if you lot've maintained a "continuous uninterrupted intention to return" to the U.Due south. during the entirety of your stay abroad. Since it's hard for the officer to determine what's been in your listen, the officer will consider the forcefulness of your ties in the U.S. versus your ties abroad to see if the ties are strong plenty to infer that you lot've planned throughout to render to the U.South. For instance:

• Where exercise you own or rent property?
• If yous own or rent holding in the U.S., practise yous have access to information technology and are your belongings in information technology, or take yous rented it out to somebody else?
• Where do you work or go to school?
• Where do your close relatives live?
• Where exercise you keep your key avails (e.m., bank accounts, credit carte du jour accounts, cars, insurance)?
• Do you file income taxes each year in the U.South.?
• Do you have a valid U.Southward. commuter's license?
• Have yous studied English while abroad?

7. A Note on Taxes

Failure to File

It is very of import that LPRs required by law to file U.S. income U.S. tax returns do so while abroad, even if they are not employed by U.South. companies, because failure to file returns may indicate abandonment. LPRs are normally required to file revenue enhancement returns indicating worldwide income, not just U.S. income. Payment of dorsum taxes later would be weak evidence of connected U.S. residence.

Filing equally a Not-Resident

It is also very important that LPRs identify themselves as U.Southward. residents on taxation returns and not as not-residents. If an individual files U.S. tax returns identifying himself or herself as a non-resident, abandonment of LPR condition may exist establish based on this "voluntary access" of non-residency.

Foreign-Earned Income Exclusion

Certain LPRs living away may qualify to exclude from taxable income upward to $102,100 of strange earnings for 2017. The foreign-earned income exclusion (FEIE) is claimed by filing a U.S. income tax return including Form 2555, Foreign Earned Income.

To qualify, y'all must come across the following requirements:

1. Your "tax dwelling" must exist in a foreign country. Your tax home is the full general expanse of your main place of concern, employment, or mail service of duty, regardless of where yous maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to piece of work equally an employee or self-employed private. (More often than not, "indefinitely" means a tax dwelling expected to last for more than than 1 yr).  Having a "tax abode" in a given location does not necessarily mean that the given location is your residence or domicile for tax purposes.
2. You must have foreign-earned income. And
3. Y'all must be one of the post-obit:
   • A citizen or national of a land with which the United States has an income tax treaty in effect and who is a "bona fide resident"  of a foreign land or countries for an uninterrupted period that includes an unabridged revenue enhancement yr. An entire taxation year is from January ane through Dec 31 for taxpayers who file their income revenue enhancement returns on a calendar year basis. For this purpose, "bona fide resident" means staying in a foreign country on a basis that is "indefinite" as opposed to "definite, temporary." Or
   • Physically nowadays in a foreign country or countries for at least 330 full days during whatever menstruation of 12 sequent months.

Claiming the FEIE may be a red flag for purposes of determining whether you have abased LPR condition.    In particular, filing under the "bona fide resident" prong may exist particularly problematic considering "bona fide residence" turns on factors including lack of definite intention as to length and nature of stay in foreign country. Co-ordinate to USCIS:

If the legal permanent resident declared himself or herself to exist a bona fide resident of a strange country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended menstruation. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a strange country.

–USCIS Adjudicator's Field Manual ch. 74 (g)(9)(B)

In dissimilarity, filing under the "physical presence" test is non in itself problematic considering information technology does non reflect the individual's intent. Still, information technology confirms potentially negative facts, i.e., that yous take been physically present abroad and accept foreign-earned income.

In certain cases, an private may choose to forego the "bona fide residence" FEIE and pay the revenue enhancement in lodge to avoid a red flag indicating potential abandonment.

8. What Volition Happen in the Airdrome if the CBP Officer Suspects Abandonment?

If you try to enter the U.S. when are vulnerable to a charge of abandonment, especially if you lack a valid entry document, y'all need to exist prepared with supporting show and exist ready to reply related questions. The burden is on you to prove that you lot are clearly and beyond a dubiousness entitled to be admitted.  A lawyer can help you gear up. For example, the attorney can assist decide the best port of entry, based on factors such as where yous live in the U.Southward., common CBP practices at the port, where you have entered in the past, and what location would be all-time if an Immigration Court hearing is required. A lawyer may likewise include ready a detailed alphabetic character that you tin provide to CBP with the facts and legal arguments in support of your case. Most importantly, the lawyer can help you prepare for what questions CBP may ask and how to answer in a way that'southward truthful and helpful to your instance. It may help to fly to the U.S. on a i-way ticket. While an attorney can aid you fix, you don't accept a right for an chaser to be nowadays during inspection at the port of entry.

At a Foreign Airport

CBP'southward Office of International Affairs operates an Immigration Informational Program (IAP) at a number of foreign airports with the mission of intercepting travelers who seek to board flights to the U.South. but are ineligible for admission. CBP officers make "no board" recommendations to airlines and foreign governments, sometimes based on interviews with travelers and baggage searches. This plan is in place at airports in

• France: Paris
• Germany: Frankfurt
• Nihon: Tokyo
• Mexico: Mexico City
• Netherlands: Amsterdam
• Panama: Panama City
• Qatar: Doha
• Kingdom of spain: Madrid
• UK: London Heathrow and Gatwick, Manchester

At the U.S. Port of Entry

At the port of entry, CBP could audit you just briefly after you wait in line, or CBP could accept you to a divide office for detailed questioning (called "secondary inspection"). So CBP would take one of several deportment:

• Admit you to the U.South. (granting a documentary waiver, if necessary).
• Refer you to deferred inspection, meaning a later appointment with CBP for further investigation.
• Permit y'all to withdraw your application for access and return abroad.
• Allow you to relinquish your LPR status (voluntarily give upwardly your light-green carte) and be admitted as a nonimmigrant.
• Issue a notice to announced for removal proceedings in Immigration Court. Notably, CBP does not have the power to have your permanent resident status abroad. Just a judge in Immigration Court tin can do that.

8. Keep in Mind the Dissever Requirements for Naturalization

Keeping your LPR status and preserving eligibility to get a naturalized U.South. citizen are two very dissimilar things with different requirements. The residence-related requirements for naturalization include (but are not limited to):

• The applicant must take been an LPR for at least 5 years (3 years if living with a U.S. citizen spouse)
• The applicant must have been physically present in the U.S. for one-half of that menses.
• The applicant must non have broken the continuity of U.S. residence. Continuity is absolutely broken past a one twelvemonth continuous absence and presumably broken past a 6-month continuous absence. That presumption can be overcome just where there is very potent evidence the absence was intended to be temporary only. Key evidence includes but is not limited to prove that: (a) the bidder did not terminate his or her employment in the U.South.; (b) the applicant'southward firsthand family remained in the U.Southward.; (c) the applicant retained full access to his or her U.S. abode; or (d) The applicant did not obtain employment while away.

For more, see:

• Tin can a Greenish Carte Holder Who'southward Been Overseas for half-dozen Months Apply for Citizenship?
• Expeditious Naturalization under Section 319(b) for Spouses of U.S. Citizens Employed Abroad
• Form N-470, Awarding to Preserve Residence for Naturalization Purposes
• Choosing Between U.S. and Chinese Citizenship: Pros and Cons

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Source: https://lawandborder.com/risk-abandoning-green-card-abroad-6-months/

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