- 1. Introduction
- 2. The Judicial Definition of “Temporary”
- 3. Is There a “Return Every 6 Months” Rule”?
- 4. Some Pointers for Keeping Trips Abroad “Temporary”
- 5. Applying for A Reentry Permit
- 6. Proving Ties to the U.S. Outweigh Ties Abroad
- 7. A Note on Taxes
- 8. What Will Happen in the Airport if the CBP Officer Suspects Abandonment?
- 8. Keep in Mind the Separate Requirements for Naturalization
What do you need to do to preserve your status as a lawful permanent resident (LPR)? If you are abroad for 6 months or more per year, you risk “abandoning” your green card. This is especially true after multiple prolonged absences or after a prior warning by a U.S. Customs and Border Protection (CBP) officer at the airport.
Feb. 1, 2017 update: It’s not clear whether the drafters of Trump’s Executive Order on “Protecting the Nation from Terrorist Attacks by Foreign Nationals” overlooked the fact that the entry bar for nationals seven countries (Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen) could impact hundreds of thousands of LPRs. The EO was issued without normal interagency review. During the first hours of enforcement of the EO, some LPRs were reportedly denied entry to the U.S. This led to federal court litigation and public outcry. See, for example, these stories in The Atlantic and National Review linking to our firm’s U.S. & China Visa Law Blog. On Jan. 29, DHS Secretary John Kelly and a DHS Fact Sheet awkwardly applied to LPRs the supposedly case-by-case “national interest” exception of the ban, saying that LPRs “traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest.” On February 1, 2017, Donald F. McGahn II, Counsel to the President, wrote a memo to “clarify” that the entry ban does not apply to lawful permanent residents. This appears to be a face-saving measure that amends the EO without the embarrassment of actually having Trump sign the amendment. That’s a victory, but LPRs with ties to restricted countries should still be prepared for possibly prolonged and rigorous inspection of your person, luggage, electronic devices, and social media accounts focusing on, among other issues, whether LPR status has been abandoned, religious beliefs, and political views.
There are many legitimate reasons a green card holder may need to be abroad temporarily, such as if you need to care for an ill family member, take a temporary job abroad, study abroad, or liquidate assets like a business or real estate abroad.
Still, CBP officers at the airport are allowed to question green card holders about whether they have given up (abandoned) their LPR status. The officer may ask questions such as:
- Where have you been outside the U.S.?
- For how long?
- What were you doing there?
- Why are you coming to the U.S. now?
- What ties did you keep to the U.S. during your absence?
CBP officers have access to computer records showing your prior entries and exits from the U.S.
If it appears you have abandoned your LPR status and you’re not willing to voluntarily give it up, the CBP officer may refer you to Immigration Court for a judge to determine whether you have lost your LPR status.
The most conservative strategy to avoid abandonment (and to qualify for naturalization, if you wish) is to keep the U.S. as your main home, reducing your absences accordingly–in other words, sleeping more nights in the U.S. than elsewhere. But this may not be practical for everybody.
If you’re going to have more extensive absences from the U.S., what you need is a plan that you can rely on to preserve your LPR status and eligibility for naturalization, if you wish. That plan may well include deepening and documenting your ties to the U.S., clarifying the evidence of the “temporary” purpose of your stay abroad, and maybe applying for a reentry permit. I recommend that you consult with our firm or another qualified immigration lawyer with experience in these cases to draw up and guide you in implementation the LPR status preservation plan.
And if you have already run into serious problems–namely, you have already stayed abroad for over one year straight without obtaining a reentry permit or you have been issued a notice to appear in Immigration Court, you consult with a lawyer about remedying the problem.
2. The Judicial Definition of “Temporary”
There are many myths about how long an LPR can stay abroad. The real rule is that an LPR who makes trips abroad that are not “temporary” loses that status. Unfortunately, there is no specific time limit for what “temporary” means. Here’s the most concise definition of temporary, from the U.S. Court of Appeals for the Ninth Circuit:
we hold that a permanent resident returns from a “temporary visit abroad” only when (a) the permanent resident’s visit is for “a period relatively short, fixed by some early event,” or (b) the permanent resident’s visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit.
3. Is There a “Return Every 6 Months” Rule”?
Yes and no. There is a 6-month rule of a sort: It says that an LPR returning from abroad doesn’t even count as applying to CBP for “admission” (i.e., CBP won’t question his or her qualifications to enter) if he or she meets the following requirements, among others:
- he or she has been abroad for under 180 days; and
- he or she has not abandoned LPR status by making a trip abroad that isn’t “temporary.”
My point here is that being abroad for under 6 months (actually 180 days) is one of the requirements but is not enough–the trips abroad must still fall within the judicial definition of “temporary.” The clearest example is the “touchdown” situation: somebody who lives abroad but who briefly “touches down” in the U.S. once every 5 months for vacation. This person has abandoned LPR status so should not be readmitted as an LPR, despite keeping every trip abroad under 6 months.
4. Some Pointers for Keeping Trips Abroad “Temporary”
Since the judicial definition of “temporary” is nebulous, here are some guidelines for avoiding abandonment of LPR status:
- Being abroad for over 180 days is one (but not the only) way to invite the CBP officer’s scrutiny as to whether you’ve abandoned LPR status.
- The safest way to avoid abandonment is to ensure that each year you are in the U.S. more than any single other country. For example, if you are in the U.S. 6 months a year, in France 4 months a year, and in Singapore 2 months a year, it is clear that your main home is in the U.S. (Your time in the U.S. doesn’t have to be continuous). This is the basic rule. It comes from the Immigration and Nationality Act’s definition of “residence,” which means one’s “place of general abode” or, in other words, one’s “principal, actual dwelling place in fact.”
- If you can’t do that, then you should document with clear evidence that your stays abroad are for a clear, temporary purpose and that you have retained ties to the U.S. that–in comparison to your ties abroad–evidence your intent to return to live here once your temporary stay abroad is over.
- If an LPR has been outside the U.S. more than one year straight, his or her green card (Form I-551, Permanent Resident Card) is not valid to reenter the U.S. In this situation, three options include: (a) present a valid reentry permit (discussed below); (b) apply at a U.S. Consulate abroad for an SB-1 Returning Resident Visa by convincing the consular officer that the stay abroad was temporary and its extension past one year was beyond your control; and (c) apply to a CBP officer at the port of entry for a “waiver” of the green card requirement by proving that the stay abroad was temporary and that there was “good cause” for not returning within one year.
5. Applying for A Reentry Permit
Our firm often advises clients to consider applying for a reentry permit if either (a) they are likely to be abroad for one year or more straight, (b) they are likely to be abroad for more than 6 months straight for two or more years in a row; or (c) they have been warned by CBP that they are at risk of abandonment.
Unlike the green card, which is valid for return after an absence of up to one year, the reentry permit is valid for up to two years. This is still no guarantee that you will be able to reenter the U.S., however. The reason is that you also have to prove to the CBP officer in the airport you haven’t abandoned your LPR status. If you have in fact been abroad for the same temporary purpose described in your reentry permit application, then it will be presumed that your trip abroad was temporary and you can be readmitted. If, however, your stay abroad was for a different purpose, than you can be referred to a judge to determine whether you’ve abandoned your LPR status. Many LPRs have been aggressively questioned by CBP officers in the airport on this point.
The USCIS Form I-131, Application for Travel Document, used to apply for a reentry permit is deceptively simple. But many LPRs decide to hire an experienced American immigration attorney because the related procedures and planning required are complicated enough and the stakes are high enough that they want to minimize the risk of denial.
A few key points:
- The I-131 must be submitted and received by USCIS while you are still in the U.S.
- You must remain in the U.S. until your biometrics (fingerprints) appointment in connection with the I-131, or you must return to the U.S. for that appointment.
- In some but not all cases it can be helpful to submit with the I-131 evidence that your stay abroad will be temporary and that you will maintain ties to the U.S. during that stay abroad.
- To reenter the U.S. with the reentry permit, be prepared to show evidence that the purpose of your stay abroad was consistent with the temporary purpose stated in the I-131, and be prepared to back that up with evidence of the comparative strength of your U.S. ties compared to your ties abroad.
For more, see our law firm’s Guide to Reentry Permits.
6. Proving Ties to the U.S. Outweigh Ties Abroad
If you’ve been abroad for a prolonged period, the CBP officer will recognize that period as “temporary” only if you’ve maintained a “continuous uninterrupted intention to return” to the U.S. during the entirety of your stay abroad. Since it’s hard for the officer to determine what’s been in your mind, the officer will consider the strength of your ties in the U.S. versus your ties abroad to see if the ties are strong enough to infer that you’ve planned throughout to return to the U.S. For example:
- Where do you own or rent property?
- If you own or rent property in the U.S., do you have access to it and are your belongings in it, or have you rented it out to somebody else?
- Where do you work or go to school?
- Where do your close relatives live?
- Where do you keep your key assets (e.g., bank accounts, credit card accounts, cars, insurance)?
- Do you file income taxes each year in the U.S.?
- Do you have a valid U.S. driver’s license?
- Have you studied English while abroad?
7. A Note on Taxes
Failure to File
It is very important that LPRs required by law to file U.S. income U.S. tax returns do so while abroad, even if they are not employed by U.S. companies, because failure to file returns may indicate abandonment. LPRs are normally required to file tax returns indicating worldwide income, not just U.S. income. Payment of back taxes later would be weak evidence of continued U.S. residence.
Filing as a Non-Resident
It is also very important that LPRs identify themselves as U.S. residents on tax returns and not as non-residents. If an individual files U.S. tax returns identifying himself or herself as a non-resident, abandonment of LPR status may be found based on this “voluntary admission” of non-residency.
Foreign-Earned Income Exclusion
Certain LPRs living abroad may qualify to exclude from taxable income up to $100,800 of foreign earnings for 2015 ($99,200 for 2014, $97,600 for 2013). The foreign-earned income exclusion (FEIE) is claimed by filing a U.S. income tax return including Form 2555, Foreign Earned Income.
To qualify, you must meet the following requirements:
- Your “tax home” must be in a foreign country. Your tax home is the general area of your main place of business, employment, or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. (Generally, “indefinitely” means a tax home expected to last for more than 1 year). Having a “tax home” in a given location does not necessarily mean that the given location is your residence or domicile for tax purposes.
- You must have foreign-earned income. And
- You must be one of the following:
- A citizen or national of a country with which the United States has an income tax treaty in effect and who is a “bona fide resident” of a foreign country or countries for an uninterrupted period that includes an entire tax year. An entire tax year is from January 1 through December 31 for taxpayers who file their income tax returns on a calendar year basis. For this purpose, “bona fide resident” means staying in a foreign country on a basis that is “indefinite” as opposed to “definite, temporary.” Or
- Physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months.
Claiming the FEIE may be a red flag for purposes of determining whether you have abandoned LPR status. In particular, filing under the “bona fide resident” prong may be particularly problematic because “bona fide residence” turns on factors including lack of definite intention as to length and nature of stay in foreign country. According to USCIS:
If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country.
In contrast, filing under the “physical presence” test is not in itself problematic because it does not reflect the individual’s intent. Still, it confirms potentially negative facts, i.e., that you have been physically present abroad and have foreign-earned income.
In certain cases, an individual may choose to forego the “bona fide residence” FEIE and pay the tax in order to avoid a red flag indicating potential abandonment.
8. What Will Happen in the Airport if the CBP Officer Suspects Abandonment?
If you attempt to enter the U.S. when are vulnerable to a charge of abandonment, especially if you lack a valid entry document, you need to be prepared with supporting evidence and be ready to answer related questions. The burden is on you to show that you are clearly and beyond a doubt entitled to be admitted. A lawyer can help you prepare. For example, the attorney can help decide the best port of entry, based on factors such as where you live in the U.S., common CBP practices at the port, where you have entered in the past, and what location would be best if an Immigration Court hearing is required. A lawyer may also include prepare a detailed letter that you can provide to CBP with the facts and legal arguments in support of your case. Most importantly, the lawyer can help you prepare for what questions CBP may ask and how to answer in a way that’s truthful and helpful to your case. It may help to fly to the U.S. on a one-way ticket. While an attorney can help you prepare, you don’t have a right for an attorney to be present during inspection at the port of entry.
At a Foreign Airport
CBP’s Office of International Affairs operates an Immigration Advisory Program (IAP) at a number of foreign airports with the mission of intercepting travelers who seek to board flights to the U.S. but are ineligible for admission. CBP officers make “no board” recommendations to airlines and foreign governments, sometimes based on interviews with travelers and baggage searches. This program is in place at airports in
- France: Paris
- Germany: Frankfurt
- Japan: Tokyo
- Mexico: Mexico City
- Netherlands: Amsterdam
- Panama: Panama City
- Qatar: Doha
- Spain: Madrid
- UK: London Heathrow and Gatwick, Manchester
At the U.S. Port of Entry
At the port of entry, CBP could inspect you just briefly after you wait in line, or CBP could take you to a separate office for detailed questioning (called “secondary inspection”). Then CBP would take one of several actions:
- Admit you to the U.S. (granting a documentary waiver, if necessary).
- Refer you to deferred inspection, meaning a later appointment with CBP for further investigation.
- Allow you to withdraw your application for admission and return abroad.
- Allow you to relinquish your LPR status (voluntarily give up your green card) and be admitted as a nonimmigrant.
- Issue a notice to appear for removal proceedings in Immigration Court. Notably, CBP does not have the power to take your permanent resident status away. Only a judge in Immigration Court can do that.
8. Keep in Mind the Separate Requirements for Naturalization
Keeping your LPR status and preserving eligibility to become a naturalized U.S. citizen are two very different things with different requirements. The residence-related requirements for naturalization include (but are not limited to):
- The applicant must have been an LPR for at least 5 years (3 years if living with a U.S. citizen spouse)
- The applicant must have been physically present in the U.S. for half of that period.
- The applicant must not have broken the continuity of U.S. residence. Continuity is absolutely broken by a 1 year continuous absence and presumably broken by a 6-month continuous absence. That presumption can be overcome only where there is very strong evidence the absence was intended to be temporary only. Key evidence includes but is not limited to evidence that: (a) the applicant did not terminate his or her employment in the U.S.; (b) the applicant’s immediate family remained in the U.S.; (c) the applicant retained full access to his or her U.S. abode; or (d) The applicant did not obtain employment while abroad.
For more, see Can a Green Card Holder Who’s Been Overseas for 6 Months Apply for Citizenship? Also, read Naturalization for Permanent Residents and Spouses of U.S. Citizens Employed Abroad to learn about answers to these two questions:
- Is a lawful permanent resident working for a U.S. employer abroad eligible to file Form N-470, Application to Preserve Residence for Naturalization Purposes?
- Is the spouse of a U.S. citizen working for a U.S. employer abroad eligible to apply for “expeditious naturalization”?
Finally, you can read here about some of the advantages and burdens of U.S. citizenship.