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. Last Updated: 07/27/2016

BUSSINESS AND THE LAW: Green-Card Holders Be Wary To Avoid Abandoment Charge

Many U.S. permanent residents will travel to the United States over the holidays to visit friends and relatives. For those who have had run-ins with inspectors for the U.S. Immigration & Naturalization Service, or INS, the excitement of travel will be tinged with nervousness.

One common myth among U.S. permanent residents -- holders of U.S. "green cards" -- is that returning once a year will safeguard their legal status. The basis of this mistaken belief is that one's green card is valid for re-entry only after an absence of less than one year.

After a year or more, permanent residents must have either a "special immigrant" visa, a re-entry permit or be granted a waiver. But even after a brief absence, INS inspectors may investigate whether U.S. residence has been "abandoned." The end result for those unable to show they are "returning from a temporary trip abroad" could be the loss of permanent residency, exclusion from the United States and a long wait to process a new application.

While some permanent residents live abroad for years, making only a yearly return trip, others have found themselves subjected to intense examination after a only a few weeks abroad.

The question of abandonment is slippery because it turns on whether the legal permanent resident has maintained an intent to return to actual, physical residency in the United States. Statements as to subjective intent, the purpose of a trip and any reasons for remaining abroad are factors, but the INS relies heavily on objective evidence.

For objective evidence the INS looks at one's social and economic ties with the United States. For example, close family members living in the United States, assignment abroad by a U.S. company, ownership of U.S. real estate, having U.S. bank accounts and filing U.S. tax returns as a resident alien are evidence of an intent to return.

On the other hand, establishing familial ties abroad, taking permanent foreign employment and purchasing foreign property can be evidence of abandonment. Filing U.S. tax returns as a non-resident alien is considered nearly irrefutable evidence of abandonment.

One way permanent residents can establish objective evidence that a trip is "temporary," is to be granted a re-entry permit.

The primary purpose of a re-entry permit is to allow a permanent resident to re-enter the United States after an absence of more than one year. But in granting a permit, the INS effectively gives pre-approval of the purpose and length of a trip which can be as long as two years.

Although the application must be filed while in the United States, the applicant can then leave and have the approved permit sent overseas. Those already abroad for two years or more should seek legal advice before applying for a re-entry permit.

An accounting of the time spent abroad within the last five years must be provided and the longer one is abroad, the more likely it is the application will trigger an abandonment inquiry.

Additionally, if assigned abroad by a U.S. firm, permanent residents with one uninterrupted year in the United States may apply to have their time abroad count toward residency requirements for naturalization.

Best of all, permanent residents accompanying their U.S. citizen spouse on assignment abroad for a U.S. firm may apply for expedited naturalization. Thus U.S. citizenship can be attained without having to meet the usual residency and physical presence requirements.

Attorney Sean Walgren specializes in U.S. immigration law at the office of Firestone Duncan.