For immigrants who have successfully navigated the long and often complicated immigrant process, acquiring the status of lawful permanent resident (“LPR status”) is an extremely significant event. Unfortunately, many permanent residents believe that as long as they pay their U.S. taxes as a resident, do not break any laws and spend at least one week each year in this country, they cannot lose their LPR status. Retaining permanent residency status is not so simple, particularly for those LPRs who are required to travel abroad for repeated or extended periods of time.
Returning to the United States in LPR Status
The Current Legal Framework:
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) established a uniform system of “removal” proceedings and replaced the concept of “entry” with the concept of “admission.” Where the definition of “entry” focused on the “coming of the alien into the United States,” the definition of “admission” and “admitted” focuses on the lawfulness of the entry “after inspection and authorization by an immigration officer.” A returning LPR under IIRAIRA is not regarded as “seeking admission” when arriving from abroad unless he or she: (1) has abandoned or relinquished that status; (2) has been absent from the United States for a continuous period in excess of 180 days; (3) has engaged in illegal activity after having departed the United States; (4) has departed from the United States while under legal process seeking his or her removal from the United States; (5) has committed certain criminal offenses and has not been granted relief from those offenses; or (6) enters or attempts to enter without inspection by an immigration officer.
This provision of IIRAIRA has been viewed by many as creating a rule that persons may retain their LPR status by simply returning to the United States once every six months. Unfortunately, this is not the case. A returning LPR is always an “arriving alien” subject to inspection and may still be challenged by an Immigration Officer at the port of entry on the ground that he or she has abandoned his or her LPR status, even if he or she has been absent from the United States for less than 180 continuous days. If the returning LPR is thought to have abandoned his or her lawful permanent residence, no matter what the length of the absence, he or she may be charged by the Immigration Officer with inadmissibility as an intending immigrant without a valid immigrant visa.
The Immigration and Nationality Act (INA) provides that all arriving aliens inadmissible for lack of proper immigrant or nonimmigrant entry documents, or who are seeking or have sought admission by fraud or a material misrepresentation, are subject to removal from the United States under the expedited removal process. However, the Department of Homeland Security (DHS) has provided that the expedited removal procedure may not be used where a check of DHS data systems verifies that an arriving alien has been admitted for lawful permanent residence, and that the alien’s LPR status has not been terminated in exclusion, deportation or removal proceedings.
If an alien’s claim to returning LPR status cannot be verified by the Service, the inspecting officer must issue an expedited removal order and refer the alien to an immigration judge solely for the purpose of providing the individual with an opportunity to establish his or her prior admission as an LPR. The alien must be detained during this procedure. If the immigration judge determines that the alien has never been admitted as an LPR, the expedited removal order will be affirmed. There is no appeal from this decision. If, however, the immigration judge determines that the alien was once admitted as an LPR and that the LPR status has not been terminated by final administrative action, the immigration judge must vacate the expedited removal order.
Entry Documents for Returning LPRs:
In order to qualify as a “returning resident,” an LPR is required to show that he or she acquired LPR status in accordance with the immigration law, that he or she has retained that status from the time that it was acquired and that he or she is “returning to an unrelinquished lawful permanent residence after a temporary visit abroad
A returning LPR must present either a re-entry permit or another valid entry document specified by regulation such as an unexpired immigrant visa; an unexpired Form I-551, Alien Registration Receipt Card known as a “green card” an unexpired Form I-571, Refugee Travel Document, endorsed to show LPR status.
The requirement of a valid entry document may only be waived in the discretion of the Department of Homeland Security. Usually, the LPR seeking admission must show "good cause" for not presenting a valid entry document. Failure to present the required document or at the discretion of DHS. Use of these documents is explained below:
As discussed above, any LPR who returns to the United States after an absence may be questioned regarding whether he or she has abandoned or relinquished his or her LPR status even though he or she presents a specified valid entry document other than a re-entry permit.
Presenting a “green card” to the DHS Inspector at the port of entry after an absence of less than a year provides no assurance that the LPR will be readmitted to the United States, for while the green card satisfies the requirement of presenting a valid entry document, its presentation is not controlling evidence that the LPR is “returning from a temporary visit abroad.” The burden is on the returning LPR to establish that his or her visit abroad was intended to be “temporary” and that his or her actions have been consistent with that intention. The types of questions that are relevant in determining an LPR’s intent to retain LPR status include:
- Is the immigrant’s family ties, property holdings and job primarily in the United States?
- Is the LPR returning to the United States as a place of employment or business or as an actual home, rather than for a brief visit?
- Did the immigrant depart from the United States for a specific, short-term activity, rather than for employment or residence outside the United States?
- Can the LPR be expected to return to the United States from abroad within a relatively short period of time?
- Can the date of the immigrant’s return to the United States be fixed by some early event, such as the termination of an overseas assignment, the immigration of a relative or the disposition of assets outside the United States?
- Did the immigrant file United States income tax returns as a “resident” taxpayer, regardless of whether any tax was owed, assuming the immigrant earned money (either inside or outside the United States) while absent? (Filing an income tax return as a nonresident taxpayer, claiming nonresident tax treaty benefits or failing to file a U.S. tax return is inconsistent with an intention to maintain lawful permanent resident status).
The more of these questions that can be answered affirmatively by the returning LPR, the more likely it is that the DHS will consider that the permanent resident has maintained LPR status. In assessing the likelihood that DHS will readmit an LPR in that status, it is also important to consider his or her pattern of travel over the years since obtaining LPR status. If an LPR spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round-trip tickets both originating and terminating in a foreign country, DHS is likely to challenge that immigrant’s entitlement to LPR status at the time he or she seeks to enter the United States, particularly if those trips are to vacation or resort destinations.
In light of the possibility that a returning LPR might be denied entry and placed in removal proceedings if deemed to have abandoned permanent residence, it clearly is advisable to have evidence establishing no intent to abandon permanent residency. The best type of evidence to establish this is a re-entry permit.
Returning Resident Application
Permanent resident aliens who are unable to return to the United States within the travel validity period of the Alien Registration Receipt Card, or the Reentry Permit, may apply to the nearest U.S. consular office for a special immigrant Returning Resident (SB-1) visa. To qualify for such status, aliens must show:
- That they were lawful permanent residents when they departed the United States
- That when they departed they intended to return to the United States and have maintained this intent
- That they are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond their control and for which they were not responsible; and
- That they are eligible for the immigrant visa in all other respects
Applicants who wish to apply for Returning Resident (SB-1) visas should contact the nearest consular office well in advance of their intended travel (at least three months in advance, if possible) to permit sufficient time for visa processing.
If the returning Resident (SB-1) visa is refused on the grounds that the alien has given up his residence in the United States, it may be possible to obtain a nonimmigrant visa, depending on whether the applicant has established a residence abroad to which he will return. If the applicant wishing to return to the United States cannot submit convincing evidence of compelling ties abroad he may have to apply for an immigrant visa on the same basis by which he immigrated originally, if that is possible.
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