United States Permanent Resident (PR) Status requires the holder of such status to have her “permanent” or primary residence in the United States. Therefore, if a PR is considering leaving the United States to take up residence in another country for at least one year she is at risk of losing her PR status. In fact, an extended absence may trigger an inquiry by the USCIS as to the PR’s intention to remain a permanent resident of the U.S. The intent of a PR to remain a permanent resident is the key factor in the USCIS’s determination as to whether the PR has abandoned her status. In addition to the length of absence from the U.S. the USCIS will examine a number of factors in determining intent. Those factors include:
- The length of the PR’s absence from the U.S.;
- The purpose or reason for the PR’s departure;
- The existence of facts evidencing a fixed termination date for the stay abroad;
- The continued filing of U.S. tax returns with the IRS as a resident;
- The location of the PR’s close family members;
- The location and nature of the PR’s employment abroad;
- The maintenance of other ties with the U.S. including mailing address, bank account and other financial accounts, ownership of real property, driver’s license, club membership, mortgage, and credit card.
As a general rule, if a PR leaves the U.S. for one year or less, she can return to the U.S. using her green card. However, when an alien is absent from the U.S. for more than one year, she may have difficulty reentering the country because the USCIS takes the position that an absence of longer than one year in duration indicates a possible abandonment of U.S. resident status. Thus, PRs who believe they may be outside of the U.S. for at least one year, should file for a reentry permit before they depart the country. By filing this document, the PR is essentially attesting to the fact that she must live outside the U.S. on a temporary basis (up to two years), but intends to return to the United States as a resident after that time.
Even if a PR visits the U.S. several times per year, she may be deemed to have abandoned her PR status if her primary domicile is not in the U.S. So, merely returning the U.S. for a few weeks every so often will not be enough to maintain PR status. If a PR intends to make another country her primary residence for at least one year, even though she will visit the U.S. periodically, I would still recommend obtaining a reentry permit prior to leaving the U.S.
In addition to filing for a re-entry permit, there are a number of steps a PR can take to maintain her status:
(1) While living abroad, she should continue to file U.S. tax returns as a U.S. resident.
(2) She should maintain an address in the United States. Either continuing to lease an apartment or own a home in the U.S. is an excellent way to prove intent to maintain PR status.
(3) If possible, she should maintain a bank account(s), U.S. credit cards, and U.S. investment accounts.
(4) If possible, she should maintain a U.S. driver’s license.
(5) She can try to maintain club memberships, library cards etc.Because a decision will be made based on the totality of the circumstances, I cannot guarantee that by doing some or all of these things the PR will ultimately be able to maintain her PR status. However, she will unquestionably have a much stronger case in proving her prior intent not to abandon her status.