Residency and Traveling Abroad: Avoid Losing Your Green Card
Legal Permanent Residents face numerous restrictions or limitations related to travel outside the U.S.
A permanent resident may lose his/her “resident” status if he/she travels outside the U.S. and remains without permission for a continuous period of more than 180 days, or if he/she travels outside the U.S. multiple times for extended periods of time even if each period is less than 180 days. If a person remains outside the US for more than 180 days, his residence is presumed to have been abandoned. However, a resident will be given the opportunity to show that it was not his/her intention to abandon his residency. If the resident remains outside the US more than 365 days, a resident will generally no longer be given this opportunity. In some instances, an individual can lose the rights to benefits that were previously earned through the social security program.
Courts that have examined claims that permanent resident status has been lost due to travel outside of the U.S. have stated that the important elements for consideration are:
• Is the visit for a period of time relatively short, fixed by some pre-determined event, or will the visit terminate upon the occurrence of an event that will likely occur within a relatively short period of time? (See Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005));
• Family ties in the U.S. and abroad;
• Property holdings in the U.S. and abroad;
• Employment or business affiliations in the U.S. and abroad;
• Licenses, Insurances, Medical Providers and Investments in the U.S. and abroad; and
• Payment of U.S. taxes on worldwide income
The balance of connections, ties, contacts, taxes and time should be weighed toward the U.S.
A stated desire to maintain permanent resident status, without more, is insufficient; the intention or desire must be supported by his actions. (See Matter of Huang, 9 I&N Dec. 749, 754 (BIA 1988))
An individual may apply for special permission to remain outside the US for more than 180 days, however, this is a discretionary grant and not a right, so the petition should be supported by strong evidence that it is necessary or of substantial importance. This permission may be granted for up to two years.
Residents the same as citizens are taxed on their worldwide income and failure to properly report income is a violation of the law that can have serious negative consequences. (See 8-105 Immigration Law and Procedure § 105.03, Matthew Bender © 2010, and 26 CFR § 301.7701(b)-1))
There are many reasons a person can lose their legal permanent residency. Some common ones in addition to remaining outside the US for extended periods of time, including being convicted or a crime; false, improper or erroneous information on prior immigration applications; failure to apply for removal of conditions on a residency in a timely manner (for conditional residents), failure to comply with the requirements of conditional status (for conditional residents), and a violations of certain immigration laws or regulations.
This why it is recommended that you apply for your citizenship as soon as you are legally eligible. Residents have virtually all the responsibilities of citizens with far fewer benefits.