Maintaining Status

Once granted, Legal Permanent Resident status does not expire (the green card does expire, but can be renewed by filing form I-90).  It can be lost, however, most commonly through prolonged absence from the United States or “abandonment.”  While the Department of Homeland Security takes the position that Green Card status can be lost if the person is absent from the U.S. for a continuous period of more than one (1) year, any absence if coupled with employment and residence outside the U.S. may in theory signify intent to abandon Permanent Residence.  The key question here is whether Legal Permanent Resident intended to abandon Green Card, not how long he/she was outside the U.S.  Abandonment can be an issue when Green Card holder obtained employment and/or a place of residence outside the U.S.  As a matter of practice (not to be relied upon in all instances), the DHS will question Green Card holders regarding their intent to abandon their status if they are returning to the U.S. after an absence of six (6) months or more.

If there is a question whether Green Card holder abandoned his/her status, several considerations may be very important:

  • Purpose of departure
  • Existence of a fixed date of return (this can be a specific date or an event)
  • Objective evidence of intent to return to the U.S., such as:
    • Close family ties in the U.S.;
    • Existence of a job in the U.S.;
    • History of filing income tax returns in the U.S.;
    • Property holdings in the U.S.; and
    • Memberships in organizations or clubs in the U.S.

Another common way in which Green Card status may be put in jeopardy is by filing Tax Return as Non-Resident.  Filing of such income tax return raises “rebuttable presumption” that Green Card holder abandoned Lawful Permanent Resident status.  This means that upon finding that Green Card holder filed tax return as Non-Resident, DHS will assume that he/she abandoned status and it will then be upon the Green Card holder to prove that he/she did not abandon it.

It may be important and very helpful to obtain “Reentry Permit” in order to alleviate some of the issues surrounding abandonment of Legal Permanent Resident (Green Card) status due to prolonged absence from the U.S.  The Reentry Permit may be obtained by an LPR who intends to or anticipates spending substantial time outside the U.S.  Reentry Permits are issued for two (2) years at a time.  Possession of a Reentry Permit does not prevent DHS from inquring into the “abandonment issues” discussed above, but they do prevent them from relying solely on the length of absence from the U.S. as the basis to determine whether LPR status has been abandoned.