Clarity and Strength in Immigration Law

Forewarned is Forearmed: Best Practices for Traveling Permanent Residents

Traveling as a Green Card Holder: What You Need to Know

There are two issues for US legal permanent residents (green card holders) who wish to travel internationally:

1) Physical presence in the US to preserve the permanent residence status, and

2) Physical presence in the US for naturalization (citizenship) purposes.

 

PERMENANT RESIDENCE STATUS

Generally, permanent residents may use the green card to re-enter the US after a temporary trip abroad. However, they must re-enter the US within one year of their last departure. If the person will be outside the US for more than one year, the green card is insufficient to re-enter the US, and the person should apply for a re-entry permit before leaving the US. A legal permanent resident who has departed the U.S. and is applying for admission “as a lawful permanent resident returning to an unrelinquished lawful permanent residence in the U.S.” may re-enter the U.S. by presenting his or her valid, unexpired permanent residence card, if he is seeking readmission after temporary absenceof less than year(8 C.F.R. § 211.1 (a)(2).) The world “unrelinquished” is not defined in the Immigration and Nationality Act. However, abandonment of permanent residence is based on intention, with the central question being whether the person’s trip abroad was temporary. (Singh vReno, 113 F.3d 1512 (9th Cir. 1997.) The Department of Homeland Security will consider factors such as:

  • The location of the person’s family ties, property holdings, and employment;
  • Whether the person intended to return to the U.S. for permanent residence; and
  • Whether the visit abroad, upon departure, was to have been for a relatively short time.

(Matter of Huang, 191.& N Dec. 749, 752-53 (BIA 1988).)

Further, the government carries the burden of proving by clear, unequivocal, and convincing evidence that the permanent resident abandoned his or her residence. (Khodaghlian vAshcroft, 335 F.3d 1003 (9th Cir. 2003)).

 

NATURALIZATION 

In terms of preserving residence for naturalization purposes, the rule is that (1) you must reside continuously in the U.S. for a period of five years following lawful admission to permanent residence and (2) that you must be actually physically present in the U.S. for at least half of that period (two and a half years). An absence from the U.S. that is too long will break the continuity of your residence in the U.S. for naturalization purposes, even though the absence does not affect your ability to return to theU.S. as a permanent resident. The rule is that:

  • An absence of less than 6 months does not break your continuity of residence in the U.S.for naturalization purposes.
  • An absence of six months or more but less than one year breaks the continuity of your residence for naturalization purposes unless you can give a reasonable explanation of the absence. An overseas assignment with a U.S. employer is almost uniformly accepted as a reasonable explanation.
  • An absence from the U.S of one year or more automatically breaks the continuity of your residence for naturalization purposes.

In general, you must be physically present in the U.S. for an aggregate total of at least one half of the period of required continuous presence (two and a half years for most foreign nationals, one and half years for spouses of citizens). You must account for every absence from the U.S., with an exact starting and termination date for each trip. For foreign nationals who travel frequently on business, this requirement can present difficulty and in some cases the naturalization examiner will literally count days to determine whether the foreign national has sufficient periods of physical presence in the U.S. to qualify for naturalization. If you want to preserve the right to file for citizenship, you can make a brief re-entry into the US.

 

Forewarned is Forearmed: Best Practices for Traveling Permanent Residents 

However, keep in mind that simply returning to the US every six months alone will not necessarily preserve your residence for purposes of applying for citizenship, nor will it guarantee that Customs and Border Patrol (CBP) will find that you have not abandoned your permanent residence status. In fact, CBP agents have recently confirmed that they are often less concerned about the actual amount of time spent outside the US, and more focused on determining where the person actually lives. Therefore, if you plan to travel outside the US as a permanent resident for an extended period of time, you may consider carrying documentation of the following with you, to prove that you actually live in the US:

  • Documentation of your employment in the US –  recent pay stubs, confirmation of employment letters from  your employer, recent W-2 statements, employer ID card
  • Documentation that close family members (spouses, children, parents) live in the US
  • Documentation of the payment of US taxes – copies of your recent tax returns, W-2 statements, etc.
  • Driver’s license showing US address
  • Documentation of how long you have lived in the US – that is, the above documentation, covering multiple years

Similarly, if you are applying for naturalization and have had frequent and/or prolonged absences from the US, the above-listed documentation can be used to document your US residence. As always, please consult an experience immigration attorney before taking or refraining from taking any action based on the above information. Happy travels!