Warning to Lawful Permanent Residents Transferred Overseas (PE)

Does your company have a large population of international assignees ("IAs")? Many U.S. companies are unaware of the need for IAs, who are also U.S. lawful permanent residents (green card holders), to maintain their permanent resident status and/or to preserve their ability to file an application for U.S. citizenship, These are issues that are often overlooked when transferring employees and their families overseas.

Lawful permanent resident (“LPR”) status can be lost in several ways, both intentionally and by accident. For those IAs who spend significant time out of the U.S., the most pressing concern is that they do not lose their lawful permanent resident status through what is called “abandonment.”

Defining a “temporary visit abroad” is very difficult. 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 can be maintained. This is an incorrect assumption. In fact, an alien who lives and works in a foreign country, but merely returns to the U.S. for brief visits periodically, will most likely be found to have abandoned lawful permanent resident status. Any time a LPR is outside the U.S. for a period of six months or more, It is the individual’s responsibility to prove ties to the U.S. These types of issues need to be considered prior to the LPRs transfer overseas. Many employees may not even realize that they have "relinquished" their lawful permanent resident status unknowingly by working abroad without taking the necessary steps to preserve residence, if in fact this option is available.

In order for an LPR to become a U.S. citizen, the LPR will eventually need to file a naturalization application but must first satisfy the requirement of maintaining continuous residence in the U.S. prior to filing the application. This means maintaining permanent residence status in the U.S. for at least 5 years prior to filing the application and being physically present in U.S. for at least half of that period. It is also important to maintain LPR status as discussed above, however, it is possible for the LPR to maintain LPR status but fail to maintain a “continuous residence in the United States”. This can cause a severe delay in the LPR’s ability to file for citizenship. Continuous presence issues pop up in the case of IAs or frequent travelers that spend a good portion of their time abroad on business trips. For these types of employees we suggest that the company encourage the maintenance of impeccable travel records including saving airline tickets, boarding passes, frequent flyer statements, restaurant/hotel receipts, etc.

There are many possible strategies that can be implemented prior to transferring employees on international assignments to preserve residence for naturalization purposes or to avoid abandoning one’s status. If any of your LPR international assignees or expats plan on or are required to spend a significant amount of time outside the United States, it is imperative that you consult with an immigration attorney.

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