United States: Whether a person with permanent resident status (a green card) in the United States (US) will lose such status if he or she leaves the US and, if so, the procedure to reacquire permanent resident status in the US (2005 - August 2007)

According to the document entitled "Now That You Are a Permanent Resident" from the Web site of the United States Citizenship and Immigration Services (USCIS), persons may lose permanent residence status if they commit an act rendering them removable from the US as per Section 237 of the Immigration and Nationality Act (INA) (n.d.). According to Section 237 of the INA, some examples of acts that would render a person removable from the US are human smuggling, marriage fraud, criminal offences, offences related to controlled substances, domestic violence, stalking, violation of protection orders, crimes against children, document fraud, falsely claiming citizenship, "terrorist activities" and unlawful voting (US 1952, Sec. 237). A complete list can be found in Section 237 of the INA.

In addition, the USCIS document indicates that persons may lose permanent resident status if they

• Move to another country intending to live there permanently.
• Remain outside of the US for more than one year without obtaining a re-entry permit or returning resident visa. However, in determining whether [their] status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
• Remain outside of the US for more than two years after issuance of a re-entry permit without obtaining a returning resident visa. However, in determining whether [their] status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
• Fail to file income tax returns while living outside of the US for any period.
• Declare [themselves] a "nonimmigrant" on [their] tax returns. (US n.d.)

The following information was provided to the Research Directorate by a consular officer at the US embassy in Ottawa in correspondence dated 9 August 2007:

U.S. permanent residents who leave the U.S. to take up residence in another country may be considered to have abandoned their permanent resident status at any time following their departure. The determination can be made by a U.S. immigration official, a U.S. consular officer or a U.S. judge. The guideline of the one-year time period following departure from the U.S. is just that, a guideline. We have recently seen a case, for example, where someone who was departing the U.S. was required by U.S. Immigration officials to give up his permanent resident status as he was physically departing the U.S. to take up residence elsewhere. Immigration officers now look at where permanent residents are spending the majority of their time, where they are working, and what they state their intentions to be when they request re-admission to the U.S.

The U.S. does offer permanent residents who need to live outside the U.S. for a protracted period of time the option of obtaining a re-entry permit, valid for two years (and sometimes renewable for one additional two-year period), prior to their departure from the U.S.

Permanent residents who abandon or lose their status and who want to become U.S. residents again must start the U.S. immigration process over from the beginning, that is, through sponsorship by an immediate relative or an employer. In very rare instances, a permanent resident who has been forced to remain outside of the U.S. for reasons beyond his or her control (an illness which kept them from returning to the U.S., for example) MAY be able to apply for returning resident status. If accepted for returning resident status, the individual must go through the immigration process again but does not require a sponsoring relative or employer to initiate the process.

The only way to maintain the right to return to the U.S. while living elsewhere is to become a U.S. citizen prior to departure.

Siskind Susser Bland, a US-based law firm specializing in immigration and nationality law which claims to be one of the largest immigration law firms in North America (n.d.b.), provides the following information on their Web site in an article entitled "The ABC's of Immigration – Preserving Green Card Status During Trips Abroad":

Among the many factors that influence the decision on abandonment are the length and reason for the absence, and the number and type of connections the [Lawful Permanent Resident] LPR maintains in the US. There are many steps [an] LPR can take to demonstrate their intent to maintain their status in the US.

A commonly held but mistaken assumption is that a visit every year to the US will preserve LPR status. While an LPR needs only the green card to re-enter the US after an absence of less than one year, this is not enough to indicate the intent to remain a resident of the US. The LPR must take additional action to preserve their status.

One of the most important factors in preserving permanent residence is to continue filing tax returns in the US. Because of international tax laws, there will often be no tax owed to the US government, but failure to file a return is almost always considered a sign that LPR status has been abandoned. The LPR should also maintain a bank account and credit cards in the US. These accounts should be as active as possible. For example, if the LPR is employed abroad, the salary should be deposited in the US account. The LPR should also continue to renew their US driver's license. If possible the LPR should purchase property in the US.

If the LPR's absence is due to employment, a letter from the employer detailing the terms and length of employment is very important. If the absence is for family or personal reasons, these should be well documented. While such reasons are acceptable, the ease with which they can be manipulated means they should be very well documented.

Of course, the LPR can also obtain a re-entry permit if the absence is to be greater than one year (after absences of less than one year, the green card is sufficient for re-entry). However, many of these same factors are involved in the decision of whether to issue such a permit, and even with a re-entry permit the LPR can still be deemed to have abandoned status. (n.d.a)

Similarly, the Web site of the University of New Hampshire's Office of International Students and Scholars (OISS), which provides support services to foreign nationals wishing to study or work in the US (25 Aug. 2002), indicates that accepting a job abroad, failing to file an income tax return or residing outside the US for more than one year without a valid re-entry permit could all potentially lead to a loss of permanent residency status (30 Nov. 2005). The OISS Web site also states that the following factors will be taken into consideration when determining if an LPR has abandoned US residency: the length of time spent outside the US in comparison with the amount of time residing in the US, the location of employment, whether trips abroad are temporary and the reasons for such trips, and ties to the US such as property, bank accounts and a permanent mailing address (UNH 30 Nov. 2005).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Siskind Susser Bland. N.d.a. "The ABC's of Immigration – Preserving Green Card Status During Trips Abroad." [Accessed 8 Aug. 2007]
_____. N.d.b. "About Siskind Susser." [13 Aug. 2007]

United States (US). 9 August 2007. Embassy of the United States, Ottawa. Correspondence from a consular officer.
_____. 1952 (last amended January 2007). Immigration and Nationality Act. [Accessed 8 Aug. 2007]
_____. N.d. U.S. Citizenship and Immigration Services (USCIS). "Now That You Are a Permanent Resident." [Accessed 8 Aug. 2007]

University of New Hampshire (UNH). 30 November 2005. Office of International Students and Scholars (OISS). "Now That You Are a U.S. Permanent Resident: Things You Should Know." [14 Aug. 2007]
_____. 25 August 2002. Office of International Students and Scholars (OISS). "About the OISS." [14 Aug. 2007]

Additional Sources Consulted

Internet sources, including: The Department of Homeland Security, the Embassy of the United States in Ottawa, foreignborn.com, Green Card Advice, greencard.com, Immigration and Customs Enforcement (ICE), Immigration Support Services, United States Immigration Support, yourimmigrationcenter.com.