by Moses Apsan, Esq.
New York, NY - December 24, 2010. Steve Fischbein, a legal resident of the United States traveled to England to take care of the estate of his deceased mother. He planned on returning within six months, but because of unforeseen legal problems, he had to stay 18 months until everything was resolved. During these months he never returned to this home in New York City. On Christmas eve his plane finaly landed in Kennedy Airport.
He waited on the line to show his passport, but to his dismay, an immigration officer pulled him aside into a special room were he was interrogated and given a notice to see an immigration judge; they wanted to take away his Green card.
It can happen to anyone. A family emergency and you are flying back home to be with relatives. The trip should have been a quick one, but one thing led to another and you were obliged to remain out of the U.S. for over one year. And, when you return and least expect it, you find yourself in a position that may cost you your green card. The trip ends with a frightening note as you enter the U.S. A USCIS (immigration service) official tells you that you have abandoned your lawful permanent residence (LPR) status and sends you to see a judge, who will decide if you are to keep your green card.
While an extended absence alone is not good enough reason for revoking permanent residence, it is one factor the USCIS considers very important. So, when planning a long trip abroad, it is necessary to plan ahead to avoid abandonment.
Among the many factors that influence the decision on abandonment are the length and reason for the absence as well as the number and type of connections you maintain in the US. There are many steps you can take to show your intention to maintain their status in the US.
It is a commonly mistakenly belief that a visit every year to the US will preserve LPR status. While an LPR needs only the green card to reenter the US after an absence of less than one year, this is not enough to indicate the requisite intention to remain a resident of the US. The LPR must take additional steps to preserve their status.
A most important factor in preserving permanent residence is to continue filing tax returns in the US. Due to international tax laws, in most cases, there will often be no tax owed to the US government. Failure to file a return, on the other hand, is almost always considered a sign that LPR status has been abandoned. Bank accounts also play an important role making the maintenance of a bank account practically a requirement. Credit cards are also a factor to consider. Every LPR should maintain a US credit card. These accounts should be as active as possible. For example, if the LPR is employed abroad, the salary should be deposited in the US account. The LPR should continue to renew their US driver’s license. Ownership of real estate helps in establishes the requisite connection with the US.
If the LPR’s absence is due to employment, a letter from the employer detailing the terms and length of employment is very important. If the absence is for family or personal reasons, proof of the illness should be obtained. These reason are, however easy to manufacture, so good documentation is most important.
If you know for sure that you will be staying out over one year, a reentry permit is advisable. (Form I-131) However, many of these same factors are involved in the decision of whether to issue such a permit, and even with a reentry permit the LPR can still be deemed to have abandoned status.
It is important that the LPR traveling abroad for an extended period is prepared to document their intent to remain a US resident if questioned by immigration or consular officials. It is wise to carry copies of relevant documents in a single location that can easily be presented to officials. Among these documents should be copies of past tax returns, deeds showing property ownership, records of bank account activity, relevant letters from employers, and letters explaining the purpose of the extended absence.
A caveat – Congress changed the law a few years ago to hold that permanent residents who leave the US for more than six months can be held inadmissible if there is something in their background now that would bar them from getting a green card . This can happen if you were convicted of a crime before the changes in the immigration laws occurring in 1997. Therefore it is imperative that anyone with a prior conviction should consult with an attorney before traveling.
For everyone else, bon voyage.
