Reuben S. Seguritan

Risk of Prolonged Travel Abroad

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Permanent resident status is a privilege that may be lost and/or revoked if not maintained and preserved.

 

Abandonment is one of the ways a noncitizen can lose his lawful permanent resident (LPR) status. It is especially important for an LPR to know what constitutes abandonment in order to protect and preserve his status.

An LPR may leave the U.S. for short temporary visits abroad at any time. This is one of the privileges of being a permanent resident. Absence of more than six months but less than a year will ordinarily not trigger an examination of his intent to abandon residence upon reentry to the U.S. In most cases, the LPR will only need to show his permanent resident card when he returns to the U.S.

The LPR should keep in mind that it is not the length of his absence that will be scrutinized; it is his intent. Therefore, even if the absence from the U.S. is less than a year, there may still be a finding of abandonment of permanent residence. Factors of possible abandonment include employment abroad; presence of immediate family members who are not permanent residents; lack of fixed address in the U,S. and frequent prolonged absence from the U.S. Declaring oneself as a nonresident on tax returns may also result in a finding of abandonment of permanent residence status.

An absence from the U.S. of more than one year is generally treated as abandonment of permanent residence. Thus, an LPR who is planning to be away from the U.S. for more than one year should apply for a reentry permit by filing Form I-131. It is recommended that the LPR who frequently travels abroad obtain reentry permit which is generally valid for up to two years.

The reentry permit will serve as proof of the LPR's intent that he is merely returning from a temporary trip abroad and therefore he did not abandon U.S. residence. However, the LPR cannot merely rely on the reentry permit to be readmitted to the U.S. Even with the reentry permit, the LPR may still be found to have abandoned his U.S. residence.

In order to establish that there was no intent to abandon permanent residence, the LPR may show evidence of employment, business or properties in the U.S., home ownership in the U.S., maintenance of U.S. bank accounts, maintaining a driver's license and family ties in the U.S., among others.

A permanent resident may maintain his permanent residence status by obtaining a social security number card before expiration. Filing tax returns in the U.S. is crucial even when the noncitizen is not in the United States.

Maintenance of permanent residence is important for naturalization purposes. One of the requirements in a citizenship  application is continues residence in the United States for at least 3 or 5 years, The applicant  must not have, within the last 3 or 5 years, been outside of U.S. for one year or more. Absences of less than 6 months generally do not break continuous residence, while absences of more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.

When his LPR status is challenged as having been abandoned, he has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.

 

 

(Editor's Note: REUBEN S< SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at:www. seguritan.com or call 212-695-5281)

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