Legal Consequences and Remedies for Green Card Holders Staying Outside the U.S. Beyond the Statutory Period

By Brian Figeroux, Esq. 

A green card, or lawful permanent resident (LPR) status, grants noncitizens the right to live and work in the United States indefinitely. However, this status is not unconditional. One of the most critical obligations for green card holders is maintaining continuous ties to the United States. Extended absences from the country can lead to complications, including the risk of abandonment of LPR status, denial of reentry, or even loss of the green card.

This comprehensive analysis explores the legal consequences for green card holders who stay outside the U.S. for extended periods, the reasons they may remain abroad, and the remedies available to address these situations. It also provides practical advice for LPRs to protect their status while managing extended stays outside the U.S. To read the complete analysis in our publication, click here, and on our civil rights blog, click here.

Legal Consequences of Extended Absences

1. Risk of Abandonment of LPR Status

LPRs are required to maintain their residency in the United States. Prolonged or repeated absences may result in the U.S. government determining that the individual has abandoned their green card status.

Indicators of Abandonment:

• Absences of more than six months but less than one year may raise red flags during reentry.
• Absences of one year or more typically result in presumed abandonment of LPR status unless specific precautions, like a reentry permit, are taken.
• Failure to maintain significant ties to the U.S., such as:
  • Filing U.S. tax returns as a resident.
  • Maintaining a U.S. address, bank accounts, and other connections.

2. Denial of Reentry at a U.S. Port of Entry

Customs and Border Protection (CBP) officers may deny reentry to green card holders if they suspect abandonment. This often occurs when:

• The absence exceeds one year without a reentry permit.
• The LPR cannot provide evidence of intent to maintain U.S. residency.
• The individual appears to have established permanent residency elsewhere.

3. Tax Implications

Green card holders are considered U.S. tax residents and must file U.S. tax returns, even when living abroad. Prolonged absences may lead to:

• Loss of tax residency, raising questions about LPR status.
• Penalties for failure to file U.S. tax returns as a resident.

4. Delayed Naturalization Eligibility

Extended time abroad can disrupt the continuous residence and physical presence requirements for naturalization:

• Continuous residence requires that LPRs reside in the U.S. for at least 30 months out of the past five years before applying for citizenship.
• Absences of more than six months but less than one year may break continuous residence unless the applicant proves ties to the U.S.
• Absences of one year or more automatically disrupt continuous residence, requiring additional years of residency to reestablish eligibility.

5. Involuntary Removal Proceedings

In rare cases, the U.S. government may initiate removal proceedings for green card holders deemed to have abandoned their status. This may result in:

• Revocation of the green card.
• Deportation to the individual’s country of origin.

Reasons Green Card Holders Remain Outside the U.S.

Green card holders may remain outside the U.S. for various legitimate reasons, including:

1. Employment Opportunities Abroad

• Temporary work assignments or business opportunities in foreign countries.
• Startups or international expansions requiring physical presence.

2. Family Obligations

• Caring for ill or elderly relatives.
• Resolving family emergencies or attending significant life events.

3. Education

• Pursuing academic programs or specialized training abroad.

4. Medical Reasons

• Extended treatment for medical conditions unavailable in the U.S.

5. Global Travel Restrictions

• Unexpected events, such as the COVID-19 pandemic, which caused travel disruptions.

6. Dual Residency Plans

• Some green card holders split their time between the U.S. and another country but fail to manage the legal consequences properly.

Remedies for Green Card Holders Facing Consequences

1. Reentry Permits

A reentry permit allows green card holders to remain outside the U.S. for up to two years without being presumed to have abandoned their status.

How to Apply:

• File Form I-131 (Application for Travel Document) before leaving the U.S.
• Attend a biometrics appointment in the U.S. as part of the application process.
• Carry the reentry permit during reentry to the U.S.

Limitations:

• The reentry permit does not guarantee admission but helps prove intent to maintain U.S. residency.

2. SB-1 Returning Resident Visa

Green card holders who remain outside the U.S. for over one year without a reentry permit may apply for an SB-1 Returning Resident Visa to regain entry.

Eligibility:

• Proof of LPR status before departure.
• Evidence that the extended stay was due to circumstances beyond the individual’s control (e.g., medical emergencies or travel restrictions).

Application Process:

• Apply at the nearest U.S. embassy or consulate before attempting to return.
• Submit Form DS-117 with supporting documentation.

3. Challenging Abandonment Allegations

If CBP officers challenge an LPR’s status at a port of entry, the individual may need to:

• Present documentation showing intent to maintain U.S. residency (e.g., tax returns, utility bills, property ownership).
• Request a hearing before an immigration judge to contest abandonment.

4. Filing for a New Green Card

In cases of confirmed abandonment, the individual may need to apply for a new green card:

• Through family sponsorship, employment sponsorship, or other eligible categories.

5. Reestablishing Continuous Residence for Naturalization

If extended absences disrupt continuous residence, LPRs can:

• Reestablish continuous residence by residing in the U.S. for at least four years and one day (or two years and one day for spouses of U.S. citizens).
• File Form N-470 (Application to Preserve Residence for Naturalization Purposes) if the absence is due to employment by a U.S. company or government.

6. Seeking Legal Assistance

Immigration attorneys can help LPRs navigate complex situations involving:

• Proving intent to maintain U.S. residency.
• Contesting abandonment in removal proceedings.
• Filing applications for reentry permits, SB-1 visas, or new green cards.

Practical Tips for Green Card Holders

1. Maintain Strong Ties to the U.S.:
   • Keep a U.S. address, bank accounts, and health insurance.
   • File U.S. tax returns annually as a resident.
2. Limit Absences:
   • Avoid absences exceeding six months whenever possible.
   • If extended absences are unavoidable, apply for a reentry permit or seek legal advice.
3. Document Intent to Return:
   • Retain evidence of ties to the U.S., such as employment contracts, property ownership, and family connections.
4. Communicate with Immigration Authorities:
   • Notify USCIS of prolonged absences and consult with an attorney if travel plans may disrupt LPR status.
5. Be Prepared at Ports of Entry:
   • Carry all necessary documentation, including a valid green card, reentry permit, or SB-1 visa.

Guidance 

Extended absences from the U.S. can jeopardize the status of green card holders, but proactive measures and legal remedies can mitigate the risks. Whether through reentry permits, SB-1 visas, or defending against abandonment claims, LPRs have options to protect their rights and maintain ties to the U.S. By understanding the legal framework and seeking professional guidance when necessary, green card holders can navigate extended stays abroad without compromising their immigration status.

If you’re a green card holder planning an extended stay outside the U.S., don’t leave your status to chance. Consult with the International Immigration Law Firm of Figeroux & Associates at 855-768-8845 or visit www.askthelawyer.us to schedule an appointment to apply for a reentry permit, or explore other remedies to protect your residency. Stay informed, prepared, and connected to your U.S. ties! Immigration law is complex. The lawyer you hire does make a difference!