Many U.S. permanent residents (LPR's) operate under the false assumption that they can travel outside of the U.S. but that as long as they return within a certain amount of time that they will not be in danger of losing their status. On this point, most LPRs understand that they should not stay outside of the U.S. for more than 6 months at a time because this may result in the loss of their Green Card and LPR status. Many also understand that a stay outside of the U.S. that is longer than 1 year will cause even more serious problems and may result in the automatic loss of their Green Card. This is partially true, but there is more to it than this.
First of all, LPR's should not confuse the validity of the Green Card (as an Entry Document) with the validity of the underlying status (as an LPR) that it represents. The law clearly says that a Green Card can no longer be used as an entry document if the LPR has been outside of the U.S. for more than 1 year and then attempts to re-enter using that Green Card. In reality, some LPR's manage to gain entry even after a trip of more than one year. This is probably because the officer at the port of entry simply did not discover that they were outside of the U.S. for more than one year. But just because they have gained entry, it does not mean that they are "in the clear" and that their long absence will not not cause problems in the future.
However, even if the Green Card can no longer be used as an Entry Document after 1 year, this does not mean that the LPR has magically and automatically lost their status just because they stayed outside of the U.S. for more than 1 year. Except where an LPR voluntarily relinquishes LPR status (by signing an I-407 Form, for example), only an Immigration Judge has the authority to issue a legally binding decision as to whether the LPR still retains the status as a permanent resident or whether that status has been abandoned. Thus, even though an alien should not be able to use a Green Card as an Entry Document after a trip of more than one year, the alien can still apply for admission to the U.S. and request to see an Immigration Judge who will decide whether the alien still has the status of an LPR.
In order to make a decision as to whether an LPR has abandoned his or her status, the Judge will look to whether the alien INTENDED to maintain or abandon that status during their trip(s) and will ask why the alien remained outside of the U.S. for so long. This is never an easy decision to make and it is generally based upon what the courts call the "Totality of the Circumstances." This means that the Judge will look at all of the facts and circumstances surrounding the aliens trip(s) and will consider virtually anything that tends to help answer the question of whether the alien intended to abandon their LPR status. In addition to the alien's stated reasons for the trip(s) outside of the U.S., the alien will often need to present evidence in support of their claim that they did not intend to abandon their LPR status. This evidence may include:
Evidence that May Demonstrate Ties to United States:
- Home ownership or renting a residence
- Continuing U.S.-based bank accounts that were actually in use
- Frequent visits to the U.S. during the time period in question
- Family members remaining in the U.S. while the alien is abroad
- Business/employment connections to the U.S.
- Maintenance of a current State Driver's license
- Pension accounts in the U.S.
- Filing of U.S. tax returns (as long as they were not filed as a "Non-Resident")
Evidence that Mat Demonstrate Reasons for the Stay Abroad:
- Affidavits (sworn statements) that indicate the reasons for the stay abroad;
- Physical evidence (medical, legal, school, government records, etc.);
- Letters or documents demonstrating attempts to resolve issue requiring the prolonged stay abroad;
- School records that demonstrate limited study abroad)
- Letter confirming employment (especially if the employer was a U.S. company).
In addition, the alien should be aware that the government may actively attempt to build a case against the alien and will try to prove that the alien did in fact abandon their LPR status. In such a case, the government may try to introduce the following evidence against the alien:
Evidence that may support a finding that the Alien ABANDONED permanent residence:
- Filing U.S. tax returns as a Non-Resident
- Executing an I-407 form or any other documents that clearly indicate an intention to abandon status as a U.S permanent resident.
- Entering the U.S. as a non-immigrant (ie. As a tourist, student, or under the Visa Waiver), as aliens must have "non-immigrant" intent in order to obtain and maintain status as a non-immigrant. This is the exact opposite of someone who claims permanent residence.
- Getting married and/or having children
- Applying for permanent residence or citizenship in another country
- Obtaining employment abroad (unless for a U.S. company) or running a business
- Voting in political elections abroad
- Running for or holding political office in a foreign country
- Serving in the military of a foreign country
In summary, whether an LPR will be found to have abandoned their status after an extended trip abroad will always depend upon the LPR's intent before, during, and after their trip(s). While the length of the trip is a very important consideration, by itself, it does not necessarily resolve the abandonment issue, as its an LPR can be found to have had the intent to abandon their status even with trips abroad that are less than 6 months in duration. Determining intent under the law can often be very difficult since, as I like to say, nobody can get inside of your head and prove what you were thinking at any particular time. While the LPR's testimony and stated reasons explaining their intent can be a useful starting point, it will be necessary to introduce external evidence (documents, conduct, the testimony of others) that supports their reasons and tends to prove the intent behind their actions. Finally, it should be kept in mind that the government, or the Court, may inquire into other factors and evidence that tends to support a finding that the alien actually intended to abandon their status. The factors above are a non-exhaustive list of some of the things that might be used to demonstrate the alien's intent when the Court makes a finding as to whether an alien has abanoned his or her LPR status.
If you would like to schedule a consultation with South Florida Immigration Lawyer Sean D. Hummel call (954) 385-3111 or email: email@example.com