It’s important to plan ahead before you take an extended trip out of the U.S. if you are a Legal Permanent Residence (LPR). Your green card is NOT an extended tourist visa; it’s granted to allow you to live in the U.S. permanently. You’re not required to apply for citizenship if you’re an LPR but you will always be at risk of losing your LPR status until you become a citizen.
Many green card holders believe they won’t lose their LPR status as long as they come back to the U.S. every 6 months. This is not true and is a dangerous myth. Even if you return to the U.S. regularly, the government can still decide you’ve abandoned your LPR status. The question is whether you are making your home in the U.S. or somewhere abroad. If you spend 10 months abroad each year, but return to the U.S. every 4 months or so, you are at a great risk of a finding of abandonment. You may be able to enter once or even a few times like this, but once CBP notices a pattern of travel that indicates you’re really living abroad and just visiting the U.S., you can be denied entry.
If you really just want to visit the U.S. regularly, you’re better off getting a multiple entry visitor (B) visa that will allow you to enter for up to 6 months at a time for up to 10 years. It can be difficult to get such a visa in many countries, unfortunately.
Even if you have a valid entry visa – student, employment, visitor, etc. – or are a permanent resident, you will be questioned by a Customs and Border Protection (CBP) officer at the port of entry. That officer can deny you entry. Visa holders are considered to be seeking admission but the Immigration and Nationality Act clearly states that a permanent resident will NOT be regarded as seeking admission (this terminology is important, but I won’t go into all the details here) unless s/he has abandoned or relinquished LPR status or been absent from the U.S. for a continuous period over 180 days.
If you are a genuine permanent resident but plan to go abroad for over 6 months for a legitimate reason, you should apply for a reentry permit before you leave the U.S. You have to apply for this while you’re still in the U.S. and you must get your biometrics (fingerprints, photo) taken in the U.S. or sometimes at a U.S. facility abroad. You can then leave the U.S. and the decision/document can be mailed to a consulate abroad. The typical processing time is 3 months, and if approved it normally allows you to remain abroad for up to 2 years when you apply for the first time. Apply on Form I-131 Application for Travel Document. The fee is $360, plus $85 for biometrics for those age 14-79. It’s wise to get legal advice.
The reentry permit shows that you intend to maintain your permanent residence in the U.S. when you leave, and allows you to reenter the U.S. as an LPR without getting a Returning Resident Special Immigrant Visa (SB-1) at a consulate abroad (see below). You should also collect documents to prove your temporary purpose abroad and your continuing ties to the U.S. Take these documents abroad with you so you can show them – or updated documents – when you return. The documents can show you:
- pay income taxes as a U.S. resident [note – you’re going to have problems if you file your income taxes as a non-resident alien];
- owning or renting a home;
- have U.S. bank accounts, credit cards, and brokerage or investment portfolios;
- own and register a vehicle in the U.S.;
- have children who attend U.S. schools;
- are employed by a U.S. company with salary and benefits from U.S. payroll.
If you left the U.S. with the intention of returning, but circumstances beyond your control caused you to stay abroad for a longer period, you may have to apply for the Returning Resident SB-1 visa on Form DS-117. This will be needed if you stay abroad for more than a year without a reentry permit, or for longer than allowed by your reentry permit (1 or 2 years). Each embassy or consulate posts its procedures. Here are links for a few: London, Manila, Brazil, Mumbai.
The consulate officer interviews the applicant, and has to determine whether s/he abandoned permanent residence. The officer will want to see:
- Proof of your ties to the United States and your intention to return – for example, filing of U.S. tax returns while abroad, and evidence of economic, family, and social ties to the United States;
- Proof that your stay outside of the United States was for reasons beyond your control – for example, you became ill or a close relative became ill and you provided care.
There is no length of time that automatically leads to a determination of abandonment. Some factors that can lead the consular officer to decide you have abandoned LPR status include:
- Extended or frequent absences from the United States;
- Disposing of property or business affiliations in the United States;
- Family, property, or business ties abroad;
- Conduct while outside the United States such as employment by a foreign employer, voting in foreign elections, running for political office in a foreign country, etc.; or
- Failure to file U.S. income tax returns.
Students: This is the current guidance to consular officers regarding LPRs who go abroad to study: “Students who wish to retain LPR status should present evidence of a definitive graduation date. Even prolonged absences from the United States may be considered temporary if the LPR can present evidence of a receipt of a degree within a definitive time. You should take into account whether students return to the United States at the end of each academic term, or whether they have family still living in the United States. Evidence of property ownership, or a bank account in the United States, may indicate the student intends to return to the United States upon completion of studies.” [9 FAM 502.7-2(8) Returning Resident Status]
If you are not approved for a Returning Resident SB-1 visa, you can either apply all over for an immigrant visa, or for a non-immigrant (temporary) visa such as a visitor visa. It will probably be difficult to get a temporary visa as you have to show you intend to return to the foreign country.
I have heard from many people who go abroad for years and then discover they are unable to return to the U.S. There are many other situations and complications that arise in this area of law, even for U.S. citizens who want to sponsor relatives for permanent residence. The bottom line is that it’s foolish for green card holders or even citizens to go abroad for a prolonged period without considering the long-term consequences and taking steps to allow their return before leaving the U.S. If circumstances beyond your control prevent your prompt return to the U.S., you may be able to apply for a Returning Resident visa. Take action including getting legal advice before your trip, or if your plans change; delay will put you in an even worse position.
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