The most common question that green card holders seem to ask is what impact will spending time outside the United States have on their permanent residence. This article will provide some basic guidance on this issue, as well as resolve matters related to residence requirements for naturalization.
What is the Distinction between Continuity of Residence and Physical Presence?
A lawful permanent resident (LPR) applying for naturalization is expected to continuously maintain residence in the United States. This does not mean that you must be physically present at all times. In other words, a break in physical presence does not amount to a break in continuity of residence.
The concept of continuity of residence and physical presence are important concepts to understand in the context of applying for naturalization. In order to be eligible for naturalization, you may not have any breaks in continuity during the relevant statutory period of time for which you must demonstrate such continuity (the immediately preceding 3 years if you obtained permanent residence through marriage or VAWA, or 5 years if you obtained you permanent residence through other means*). You must be physically present in the US for only half the time (18 months if you obtained permanent residence through marriage or VAWA, or 30 months if you obtained your permanent residence through other means).
- According to 8 C.F.R. § 316.5(c)(1)(i), departures of more than 6 months and less than 12, do not necessarily break the required continuity, but the burden is on the applicant to establish that you did not, in fact, abandon residence in the US. Be prepared to prove you didn’t break continuity under the regulation. You can show maintenance of ties with the following facts (this is not an exhaustive list):
- (A) The applicant did not terminate his or her employment in the United States;
- (B) The applicant’s immediate family remained in the United States;
- (C) The applicant retained full access to his or her United States abode; or
- (D) The applicant did not obtain employment while abroad.
According to 8 C.F.R. § 316.5(c)(1)(ii), departures of more than 1 year will break continuity.
If continuity is broken, then you must wait 4 years 1 day, or 2 years 1 day if you obtained permanent residence through marriage or VAWA, before you may apply for naturalization.
Having a reentry permit will not prevent the application of the above rules. So, if you leave for 1+ year and return on a reentry permit, you will be deemed to have broken continuity.
What is the Distinction between Abandonment of Residence and a Break in Continuity?
If an LPR is deemed to have “abandoned residence,” then their status as a permanent residence is terminated and they may be placed into removal proceedings. Again, if an LPR is deemed to have had a “break in continuity” in their residence, the consequence will merely be that they will have to wait 4 years + 1 day (or 2 years + 1 day in marriage of VAWA-based LPRs) until they may apply for naturalization.
When you are returning to the United States, the Customs and Border Protection (CBP) officer will only assess whether you have abandoned residence. Regaining admission after CBP inspection does not guarantee that you did not break your continuity of residence. It also does not necessary mean that you did not abandon residence, it simply means that the officer was satisfied that you did not abandon residence. In other words, the officer’s conclusion is not binding on Immigration Customs Enforcement (ICE) officers from deciding to put you into removal proceedings for abandoning residence or on United States Citizenship and Immigration Service (USCIS) officers concluding that you have abandoned residence. So even if your abandonment took place several years ago, and you were successfully readmitted, you can still potentially lose your green card.
While the matter of continuity is more of a simple matter of timing, abandonment is a matter of assessing intent. A mistake LPRs make is assuming that as long as they don’t break continuity by “touching US soil” every 6 months, they will be safe from being deemed to have abandoned residence. Another mistake LPRs make is assuming that you can get reentry permits, and therefore, have a guarantee that they will be readmitted. A reentry permit is not a guarantee to readmission. You may still be questioned about your ties to the US and whether you have taken actions that amount to abandonment.
So, what kinds of considerations are relevant to determining whether you have abandoned residence? The analysis has to do with whether or not you have returned from a temporary visit abroad. With respect to the 9th Circuit US Court of Appeals, “temporary visit abroad” is one where (a) it is for a relatively short period, fixed by some early event, or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.” Since the key consideration to abandonment is that whether or not you have taken “temporary visits abroad,” if you tend to have had a habit of regularly spending several months every year outside the country, and simply returned to the US to touch soil, you risk being found to have abandoned residence. There is virtually an infinite number of travel scenarios, some clearly will result in abandonment, and some that clearly will not, and some situations which are more in a gray area. The assessment of whether you have abandoned residence is a discretionary matter based on the totality of circumstances.
And although an absence of less than 6 months can never disrupt residence for naturalization, it can result in an abandonment of the LPR status. One situation where this risk may exist is if an LPR gives up their job and abode (home/apartment) in the US, and gets a new job and abode in their home country. Even if the trip lasts less than 6 months, the above actions could potentially lead a CBP officer to take away your green card. The CBP officer may not be able to read the LPRs mind, but based on the totality of circumstances, it is arguable that those actions constitute intent to abandon residence.
LPR Responsibility to File Income Tax
Also of importance is the requirement to file taxes in the US. Pursuant to 8 C.R.F. § 316.5(c)(2): “An applicant who is a lawfully admitted permanent resident of the United states, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.”
Note that even if an LPR does not earn income in the US, the LPR would still need to report his/her worldwide income on a U.S. tax return as a resident. Certain treaties will determine whether the LPR may only have to pay taxes to the foreign country from which sources of income are derived.
What if I left the US for Over 1 Year without a Reentry Permit, or have been Outside the United Stated for Over 2 Years?
You will likely not be permitted to return to the US on your green card, and it may be best to apply for a special immigrant visa (SB-1) at a U.S. consulate. An alien can qualify for this if it can be established that:
- The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;
- The alien departed from the United States with the intention of returning and has not abandoned that intention; and
- The alien is returning to the United Stated from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien’s control and for which the alien was not responsible.
Conclusion
Ideally spend at least half of your time in any given year in the US, and do not take trips longer than 6 months. If you must take a trip longer than 6 months and less than 12 months, be prepared to explain why you spent so much time outside the US and that you intended to only make a temporary departure. If you must take a trip longer than 1 year and less than 2, get a reentry permit, and be prepared to explain why you spent so much time outside the US, and that you intended to only make a temporary departure. If you must take a trip longer than 2 years, you will likely not be permitted to return to the US as a permanent resident unless you apply for a special immigrant visa and can show that your long absence was beyond your control. Above all, ensure that you maintain ties to the United States during your absences, including family members, a residence, or a job. In a situation where you are not maintaining any of the above, you should at least have a very convincing explanation as to why the trip was necessary and what made it temporary in nature.
Before making a plan to spend significant time outside the United States, it would be advisable to consult a qualified immigration attorney to analyze the risks.
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*Note: you may apply for naturalization 3 months in advance of reaching the 3 or 5 years of continuous residence.
