Maintaining Legal Permanent Resident (LPR) status requires intent to permanently reside in the United States. Accordingly, an LPR is subject to a removal order from an Immigration Judge if found to have “abandoned” intent to live in the U.S. permanently.
The issue of abandonment often arises when an LPR travels abroad. Although the LPR’s intent is controlling – the length of time and frequency one spends abroad are factors weighed by Customs and Border Protection (CBP) to readmit LPRs at the port of entry, and by Immigration Judges to determine whether the LPR abandoned intent to maintain permanent residence in the United States.
As to length of time, absences in excess of 6 months may give rise to a presumption of abandonment. Absences from the U.S. for a year or more are likely to face the greatest amount of scrutiny because, for one, the Permanent Resident Card or “green card” becomes technically invalid if the LPR is abroad for over a year. In these instances, the LPR may face a greater burden to overcome the presumption of abandonment than for those staying abroad for less protracted timeframes.
As to frequency, a LPR’s intent to maintain permanent residency may come into question if, for example, the individual lives abroad and routinely returns to the U.S. once every 5 months. Without more, an Immigration Judge may very well consider such person to have abandoned LPR status despite keeping stays outside the U.S. under 6 months.
There are certainly legitimate reasons for LPRs to remain abroad for long periods of time. To care for infirm or elderly relatives is one example. In such instances, presenting evidence to CBP at the port of entry demonstrating strong and fixed ties to the U.S. is important indicia of intent to maintain permanent residence and that the stay abroad was indeed for a temporary purpose.
Such evidence may include filing of income tax returns, family members in the U.S., property ownership, bank accounts, insurance, U.S. Driver’s license, and business affiliations. Things like returning to the U.S. on a one way ticket versus a round trip ticket may also be considered.
In addition, obtaining a reentry permit (valid for 2 years) if one knows ahead of time the stay abroad will exceed a year, or applying at a U.S. Consulate abroad for a SB-1 Returning Resident Visa in instances where the LPR is kept away longer than a year due to unforeseen circumstances, are potential preemptive options to consider. In either case, the LPR should be prepared to document the reasons for leaving the U.S., the temporary nature for the stay abroad, and the cause for not returning within a year.
As often the case, travel abroad raises many issues to consider. Having a plan in place to avoid unintentionally abandoning LPR status deserves consideration. Sharma Law Offices, a highly rated Atlanta immigration law firm, is experienced in these matters and is available for a consultation.
In Part II, we will discuss the unpublished Board of Immigration Appeals decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) which is an example of how some of the principles discussed herein were applied by an Immigration Judge and the Board of Immigration Appeals.