Navigating the maze of laws, regulations and other rules governing immigration in the U.S. can be intimidating. Even after you have managed to successfully obtain a green card you are not home free yet. Frequent, extended or even brief trips out of the country can put your future plans to obtain naturalization and your green card at risk.
Whether you plan on traveling outside the country for business, pleasure, or both, it is important to understand the issues involved when you travel with your green card and consult with an experienced immigration attorney to ensure you do not do anything that will impact your ability to continue life in the U.S.
As a general matter, the Permanent Resident Card (“Green Card”) can be used to re-enter the U.S. states after a trip, or trips, abroad by a lawful permanent resident. Permanent residents are supposed to be able to travel freely outside the U.S. A brief trip to visit family, for business or pleasure should not affect your status.
However, the card does not guarantee admission and depending on the nature of your travels you may be questioned as to whether or not you intended to maintain your residence in the U.S. Even if you are not planning on being outside the U.S. for very long, abandonment can still be found upon reentry if it is believed you did not intend to make the United States your permanent residence.
If you remain outside the U.S. for more than one year your green card can be invalidated, and the Department of Homeland Security may even treat your residency as abandoned for naturalization purposes after six months. Keep in mind, the rules governing naturalization are separate than those for travel with a green card. If you have questions about the naturalization please consult an experienced immigration attorney.
Periodic trips back to the U.S. every year may not be enough to ensure your green card remains valid if it is determined you actually live abroad or otherwise intended to abandon residency in the U.S. This is because green card holders must “establish continuous physical presence” in order to maintain legal status. Continuous physical presence is demonstrated by showing there was never any intention to abandon the green card and that the lawful permanent resident has maintained his or her ties in the US. (Several past Board of Immigration Appeals cases provide an interesting discussion and background on this rule, consider reviewing the decisions in either the Matter of Kane, decided in 1975, or Matter of Huang decided in 1988).
When you try to return to this country if it is discovered that you did not intend to make the U.S. your permanent home you can be found to have abandoned your permanent resident status.
A “temporary” visit does not result in a finding that you have abandoned your residency. A visit is considered temporary where it is for short relatively short period of time that is determined by some event or if the visit is intended to end once an event happens in the future (again, so long as the event happens relatively soon after you have left the U.S.).
What factors will the officer at the port of entry consider in determining whether your stay abroad was temporary?
Well it is important to know that he or she will likely examine whether you maintained U.S. family and community ties, U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver’s license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.
For example assume, you leave the country to visit a sick relative, expecting to return after paying your respects at the funeral and they wind up recovering, or you travel home to celebrate a loved one’s marriage, and you wind up wanting to extend your stay and visit with old friends. Only if it is found that at all times you had what the Governmental calls a “continuous uninterrupted intention to return to the U.S.” will you not be at risk of losing your status.
Conversely, the extent of your ties abroad can also be evaluated to determine whether at any point you did not have the intention of returning to the U.S. For instance, assume you operate a business abroad eleven months out of the year and return briefly to this country every year to visit family. In this case it could be concluded you are using your green card simply as a travel document, and do not intend to make the U.S. a permanent home. Any decision on abandonment will inevitably include a thorough examination of your ties both inside and out of the U.S.
Regardless of the length of the trip you plan to take, you must keep your roots in the U.S. Consider documenting the reasons for your travel, plans to return and maintaining as much of your ties to the U.S. as possible. Remember, once you are able to make a claim of permanent residence the government must prove abandonment by clear, unequivocal and convincing evidence. Thus, even if you do not have enough documentation to prove your intent to return you may be able to prevail simply by raising enough doubt as to the legitimacy of the governments abandonment claim.
If your travel outside the U.S. is expected to be lengthy you should plan ahead and file for a reentry permit (Form I-131) before leaving the country. However, a reentry permit does not prevent the Department of homeland Security from looking into whether you have abandoned your U.S. residence. A reentry permit only prevents them relying on the length of your trip alone to prove abandonment of your U.S. residence. Additionally, the permit itself can be used as evidence to show your intent to return at a future date should you find yourself in further proceedings before the DHS.
As we all know, problems can even arise even after you have reached your destination. In the event you lose your green card while overseas you must contact the American Consulate, and there are procedures that must be followed to ensure you are able to return without incident. This can be time consuming and you should seek assistance from an experienced professional once you discover the problem.
There are numerous issues that can arise when a green card holder travels abroad. Successfully navigating the United States complex maze of immigration laws is difficult, and to prevent forfeiting your status or impacting your options in future proceedings it is always advisable to seek the help of an attorney experienced in the field of immigration law.