Maintaining U.S. Permanent Resident Status and Options and Recommendations to Prevent Abandonment of U.S. Residency (Part 1 of 2)

A U.S. Permanent Resident Card (“Green Card”) is a privilege many wait years to obtain, and sometimes pay a lot of money for, and something many can only dream of obtaining.  Although a Green Card allows a person to live, work, and travel in/to the United States, a Green Card has some important limitations.  One important limitation Green Card holders should be aware of is associated with the concept of “abandonment of residency;” failure to properly understand this concept can lead to the U.S. government taking away a Green Card holder’s U.S. permanent resident status.  In part one of this article, the “abandonment of residency” concept will be discussed.  Part two, to be published soon, will discuss options and recommendations to prevent a U.S. government finding of abandonment of U.S. residency.

I. What is a Green Card and Which Rights Does it Grant.

A Green Card is known by many names, including a U.S. Permanent Resident Card and Form I-551.  A valid, unabandoned Green Card grants its holder many rights, including,

  • Living permanently in the United States.
  • Working in the U.S.
  • Owning property in the U.S.
  • Attending public school.
  • Applying for a U.S. driver’s license.
  • Receiving Social Security, Supplemental Security Income, and Medicare benefits, if eligible.
  • Applying for U.S. citizenship, once eligible.
  • Sponsoring additional family members for Green Cards.
  • Leaving and returning to the United States under certain conditions.

On the other hand, U.S. permanent resident status also comes with obligations, including properly maintaining U.S. permanent resident status, which will be discussed below.

II. Maintaining and Abandonment of U.S. Permanent Resident Status.

As its name suggests, a U.S. Permanent Resident Card requires one to permanently reside in the U.S.  In other words, if the U.S. government determines that a Green Card holder did not intend to make the United States their permanent home, the Green Card holder can be found to have abandoned their permanent resident status and have all of the above-mentioned Green Card holder rights revoked; it is important to note that this may occur even if a person is in possession of an original unexpired Green Card.

III. When Does the U.S. Government Evaluate Whether A Green Card Holder Abandoned U.S. Permanent Resident Status.

A Green Card holder may have to prove that he or she has properly maintained their U.S. permanent resident status and not abandoned it in numerous circumstances, including,

  • When seeking re-entry into the U.S. with U.S. Customs and Border Protection (“CBP”);
  • When checking-in or boarding onto a flight destined for the U.S.—in some circumstances, without proper reference to government regulations/guidance, airline carriers will not allow Green Card holders to board a flight to the U.S.;
  • When petitioning U.S. Citizenship and Immigration Services (“USCIS”) to Remove Conditions on Residence on a Conditional Green Card;
  • When renewing/replacing a Green Card;
  • When applying for U.S. citizenship.

It should be noted that the U.S. government may try to push a Green Card holder to forfeit U.S. permanent resident status when not required; accordingly, it is important for Green Card holders to know their legal rights, and competent legal advice is essential.

IV. Criteria Used to Determine Whether a Green Card Holder Abandoned U.S. Permanent Resident Status.

In evaluating whether a Green Card holder has properly maintained their U.S. permanent resident status or abandoned it, the U.S. government analyzes these criteria:

  • The Green Card holder’s purpose in departing the U.S.;
  • Whether there was a fixed termination date for the visit abroad; and,
  • Whether the Green Card holder had a continuous uninterrupted objective intent to return to the U.S. as a place of permanent employment and/or home.    

In evaluating said criteria and whether a Green Card holder has properly maintained their U.S. permanent resident status, the government makes certain presumptions based on how long one has been absent outside of the United States and considers certain factors.

V. Factors Used to Determine Whether a Green Card Holder Abandoned U.S. Permanent Resident Status.

During their analysis of the above-mentioned criteria (especially the objective intent to return to the U.S. criterion), the U.S. government considers certain factors, including,

  • Family ties in the U.S. and abroad;
  • Employment;
  • Business affiliations;
  • Income tax returns;
  • Club memberships;
  • Property holdings;
  • Mortgages; and,
  • Many more.

A qualified U.S. immigration lawyer may be able to assist Green Card holders in planning and strategizing to assist clients in showing that these factors show proper maintenance of U.S. permanent resident status.

VI. Time Spent Outside of the U.S. Presumptions in Determining Whether a Green Card Holder Abandoned U.S. Permanent Resident Status.

In determining whether a person has failed to properly maintain his/her U.S. permanent resident status and, consequently, abandoned residency, the U.S. government makes abandonment of residency presumptions (on a sliding scale, from a high presumption of abandonment to a lower presumption of abandonment) based on a Green Card holder’s time spent (not in the cumulative) outside of the U.S. 

First, a valid Green Card can generally be used to re-enter the U.S. if “returning to an unrelinquished, lawful permanent residence in the United States” “after a temporary absence of less than 1 year.”  8 C.F.R. § 211.1(a)(2).  In other words, absence outside of the U.S. of one year or more, without a re-entry permit (to be discussed below), generally leads to a finding of abandonment of U.S. permanent resident status, even if the applicant for entry into the U.S. is in possession of an unexpired Green Card—although an experienced U.S. immigration lawyer may have solutions to overcome this situation. 

Second, a Green Card holder seeking re-entry into the U.S. after more than 180 days outside of the U.S. is regarded as seeking re-admission into the U.S., which includes, among others, an evaluation as to whether he or she has abandoned U.S. permanent resident status.  INA § 101(a)(13)(C).  Accordingly, an absence outside of the U.S. of more than 180 days but less than one year is presumed to be an abandonment of residency unless properly rebutted. 

Third, even if the absence outside of the U.S. is 180 days or less, abandonment of residency can be found if the Green Card holder fails to show a continuous uninterrupted intention to return to the U.S.  Accordingly, contrary to what many think, returning to the U.S. every year or even every 6 months or less can lead to abandonment of residency.

VII. Conclusion.

Because the concept of abandonment of U.S. residency is quite complex and the possible consequences (loss of U.S. Legal Permanent Resident status) are drastic, it is highly advisable to consult with an experienced U.S. immigration lawyer if one may have difficulty maintaining U.S. permanent resident status.  Part two of this article, discussing options and recommendations to prevent a U.S. government finding of abandonment of U.S. residency, will be published shortly.

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