You Can Not Lose Your Green Card If You Spend A Week In The US Every Year - MYTH Here is the REALITY…

A returning lawful permanent resident ("LPR") may present a green card at the port of entry after a temporary visit abroad not exceeding one year. In order to qualify as a returning resident alien, a person must

(1) have acquired LPR status

(2) have retained that status from the time he or she acquired it, and

(3) Must be returning to "an unrelinquished lawful permanent residence after a temporary visit abroad."

Defining a "temporary visit abroad" is one of the most difficult issues in immigration law. Many people erroneously believe that if a person comes back to the United States at least once a year or even within six months, lawful permanent resident status is saved. This is incorrect. In fact, an alien who lives and works in a foreign country, but merely returns to the U.S. for brief visits periodically, may still be found to have abandoned lawful permanent resident status.

A "temporary visit" cannot always be defined strictly in terms of how long it lasts. The most important factor in determining if an alien’s stay abroad is a "temporary visit" is the alien’s intent. Factors have been set forth by which the immigration courts, the Department of Justice and the Immigration and Naturalization Service ascertain an alien’s subjective intent of a temporary visit abroad in abandonment cases. These factors include, but are not limited to, the alien’s reason for departing, whether (at the time of departure) the alien expected the visit to end shortly, whether the alien intended to return to the U.S. to live or to work, the country of the alien’s ties (job, property or family), and the actual duration of the visit abroad. Other factors that have been considered in determining the intent of a temporary visit have been the length of the absence, owning a home in the U.S., but not living in it as well as only spending a few weeks each year in the U.S.

The INS instructs its officers to evaluate the following factors in determining whether a visit abroad was temporary: arrival via a chartered air carrier where nearly all passengers are nonimmigrants, return to the U.S. with a spouse and/or children who are neither citizens nor lawful permanent residents and who will allegedly be in the U.S. only a short time (usually with nonimmigrant visitors’ visas) arrival at a port of entry functioning as a gateway to a resort area, especially where the alien’s I-94 card reflects a U.S. address elsewhere, possession of a round trip ticket terminating outside the U.S., either of short duration or on an excursion fair, as well as alleged U.S. address on Form I-94 being a resort, hotel, or simply "in care of." These factors indicate that the LPR is not maintaining a residence in the U.S. and the visits outside the U.S. are not temporary.

The INS will consider the circumstances of a prolonged stay abroad when the delay was caused by reasons beyond the alien’s control and for which he or she was not responsible.

It is important that lawful permanent residents maintain their status as permanent residents. In order to determine if an individual who has been granted lawful permanent status has maintained that status, the INS will evaluate many factors including, but not limited to: limited stays outside the United States, ownership of land or property in the U.S. that is actively used by the individual, maintaining active bank accounts, credit cards as well as memberships to organizations (e.g. video store, library, gym, community organizations) in the U.S. In addition, dependent family members should live in the U.S. if they are eligible to do so. The INS can request to see school and medical records in the case of young parents. Further, the manner in which you file U.S. income tax returns is also reviewed.

One method of notifying the INS of the intent to maintain a residence in the U.S. is to apply for a reentry card. A reentry permit is a document that informs the INS that a permanent resident desires to travel for significant periods of time outside the U.S. and does not wish to abandon their permanent resident status. The reentry permit helps a permanent resident demonstrate the intent to maintain residency in the United States. The reentry permit is helpful for those permanent residents who live, work and study abroad and those who travel outside the U.S. for significant periods of time. However, the reentry permit does not preserve or guarantee the physical residency or permanent resident status of an individual for the purposes of naturalization.

The reentry permit is often used as a safeguard to prevent the INS from determining that the LPR has automatically abandoned their permanent residence status after a significant time spent abroad. Without such a permit, the INS will automatically take the position that an individual who remains outside the U.S. for more than one year (with only short trips to the U.S.) has abandoned their permanent residence status. Again, while the reentry permit card does not guarantee the retention of the permanent resident status, it is evidence that the individual did not intend to abandon their permanent resident status. If INS determines that the permanent residence has been abandoned, the individual must reapply for permanent resident status. When INS makes the determination that an individual has abandoned their permanent residence status, it will not matter that the individual may still have the physical green card in their possession. That card will automatically become void when INS determines that the permanent resident status has been abandoned.

There are special circumstances for clergymen and employees of American companies working abroad that are outside the scope of this article, but should be reviewed.

As a lawful permanent resident, if you plan on spending a significant amount of time outside the United States and would like further guidance, please contact the business immigration group at Greenberg Traurig.

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