By Robert P. Gaffney, Esq.
Gaining permanent residency in the United States is an important achievement for immigrants looking to make a life in this country. However, it is possible for permanent resident status to be lost either voluntarily or inadvertently. Lawful permanent residents (“LPRs”) who attempt to reenter the United States with their permanent resident cards after prolonged absences may be surprised to discover that an immigration inspector has found that they may have abandoned their LPR status and refuse to admit them to the U.S., instead referring them to a hearing before an immigration judge.
As the U.S. Citizenship and Immigration Services (USCIS) explains, a permanent resident may intentionally give up their status by moving to another country to live. However, not all permanent residents who leave the U.S. to live in another country for an extended period of time do so with the intention of living there permanently. Nevertheless, under some circumstances, U.S. immigration authorities may consider permanent residency status to be lost through abandonment if an LPRs stay abroad lasts for an extended period of time. This issue often arises at a U.S. port of entry when you are seeking to return to the U.S. after one or more relatively lengthy period of absence from the U.S. The issue of abandonment of status may also arise in the context of an application for naturalization as a U.S. citizen.
United States immigration law does not establish a minimum period of time which an LPR must remain present in the United States in order to avoid loss of resident status. Rather, in order to qualify as a returning resident alien, a person who has previously been accorded LPR status must establish that he or she is seeking to return to the U.S. from a “temporary visit abroad.” Whether or not the person can prove that his or her absence was “temporary” and gain readmission to the United States will depend upon the particular circumstances of the case. Elapsed time outside of the United States alone is not the sole factor. Rather, the intention of the person, when it can be determined will control.
It may be possible to avoid a finding of abandonment of LPR status by providing some key explanations concerning your trip and proving your absence was meant to be temporary and of a relatively short duration. You can explain the reason for leaving the country and how long you had intended to be out of the United States. You should also explain and be prepared to provide documents to prove what happened if some circumstance caused you to stay away from the U.S. longer than initially intended.
LPRs who may be outside of the U.S. for extended periods of time, either for one long absence, or a series of absences which cumulatively will amount to a substantial period of time, should consider applying to U.S. Citizenship and Immigration Services for Reentry Permit to facilitate their admission to the United States on return from temporary visits abroad. You must be physically present in the U.S. when you apply for a Reentry Permit. Issuance of a Reentry Permit creates a legal presumption that the approved trip is temporary. A permanent resident with a valid Reentry Permit shall not be deemed to have abandoned status based solely on the duration of an absence or absences while the permit is valid.
If you believe that you are at possibly at risk of your LPR status due to extended or frequent absences from the U.S. you should consult competent legal counsel to help your resolve your situation. Keep in mind that this article is written as general information on permanent residency issues. It does not provide any legal advice for any individual’s particular situation.