After overcoming the often difficult and time consuming process of applying for and receiving a green card, the new lawful permanent resident needs to be careful not to lose the green card or right to naturalize because too much time is spent out of the United States. A consular or immigration official may conclude that a lawful permanent resident returning from an extended trip outside the US actually intended to abandon permanent residency. Prolonged absences may also affect one’s statutory eligibility to naturalize under provisions requiring continuous residence in the US.
To maintain permanent residence, a lawful permanent resident (“LPR”) should take steps to ensure that he or she is not considered to have abandoned permanent residency. Factors that affect a consular or INS official’s determination of an intent to abandon permanent residency include the purpose of the absence from the US, the length of time abroad and connections to the US. The LPR can address this concern by taking several steps including obtaining a reentry permit or staying out of the US for less than one year, obtaining evidence from an employer regarding the length of the employment abroad, maintaining a US residence, filing tax returns in the US and maintaining investments and accounts in the US.
As noted above, LPRs should be careful to have available the proper documentation to present upon their return to the US. If a lawful permanent resident is leaving for less than one year, the LPR should present the green card. If the LPR anticipates remaining outside of the US for more than one year, the LPR should present a reentry permit. The reentry permit, which resembles a passport, can be obtained by filing an Form I-131 Application with the Immigration and Naturalization Service’s Northern Service Center in Nebraska and must be applied for at least thirty days in advance. However, applying even earlier is advisable since the Northern Service Center is often backlogged in processing these applications (currently the processing time is more than sixty days). Reentry permits last for up to two years before expiring. Lesser periods for reentry are granted if the LPR has been out of the US for several of the most recent years.
Lack of a reentry permit does not mean that the LPR cannot return to the US. Rather, the LPR must convince the US consulate or the INS official at a port of entry that he/she intended to return to the US and that the protracted period of stay out of the US was caused by unanticipated circumstances which could not be controlled. But this remedy is difficult to obtain and is best avoided if other options are available.
Preserving residence for naturalization is somewhat more difficult than preserving permanent residency. The LPR must maintain continuous residence in the US for five years (three years for the spouse of a US citizen) and be in the US for at least half that time (three months of which are in the state or INS district having jurisdiction over the applicants current place of residence).
Residence is based on where one’s permanent home is located. Absences of more than six months are presumed to break continuous residence unless the permanent resident can show that he/she did not terminate US employment and was not employed abroad and that the applicant retained his or her abode. Absences of greater than one year automatically break the period of continuous residence unless the applicant is employed by the US government or a recognized US research institution, the permanent resident is employed by an employer engaged in foreign trade, or the permanent resident works for a public international organization where the US is a member and the lawful permanent resident did not work for the organization until after permanent residency was granted. The applicant must specifically apply for this benefit prior to the end of a year abroad.
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