Maintaining Legal Permanent Residency

June 26th, 2017

Legal permanent residency can be abandoned if the foreign applicant is outside the US for long periods of time and/or does not treat the US as his or her primary home. If the legal permanent resident (LPR) leaves the country for more than six months there is a presumption that such status has been abandoned and the LPR must prove otherwise to US government authorities, including showing that the LPR has maintained the US as his or her primary home. Once the LPR has been outside the U.S. for more than one year, then the LPR will not be able to reenter with his or her alien registration card and the government will deem such status abandoned.

However, there are exceptions to this rule. First, if the LPR applies for a reentry permit before he or she leaves the U.S., then the LPR may reenter the U.S. with this document for up to two years from the date of his or her departure from the U.S. Second, if the LPR seeks readmission into the U.S. more than one year after his or her departure and did not apply for the reentry permit, then the LPR may be able to obtain a special immigrant visa at a U.S. consulate abroad. If the LPR will not return to the U.S. within two years, then the LPR will also need to obtain a special immigrant visa at a U.S. consulate abroad. When making an application for a special immigrant visa, the LPR must establish that he or she has not abandoned legal permanent residence and has still treated the US as his or her primary home while outside the U.S. Evidence of maintaining legal permanent residence in the U.S. includes filing resident tax returns; maintaining a valid driver’s license; holding credit cards and bank account/s and owning property.

The reentry permit does not guarantee the LPR’s readmission into the US. It merely certifies that the U.S. government has accepted the LPR’s trip as temporary, i.e., that the LPR maintained legal permanent residency despite a lengthy absence. As a result, if the LPR has a reentry permit, then the LPR cannot be denied readmission into the U.S. solely on the duration of his or her absence. However, the LPR may still be deemed inadmissible under some other ground of exclusion (e.g. commission of certain crimes). If the LPR fails to pay US residence income taxes (on his or her worldwide income, not just U.S. source income) during his or her period of absence, this demonstrates an intent contrary to the required intent of a legal permanent resident and the LPR may be considered to have abandoned legal permanent residency despite the reentry permit.

Also, if the LPR commits activity that deems him or her inadmissible to the US, then the LPR may be stopped at the border when trying to reenter the US. Grounds of inadmissibility include the commission of certain crimes. However, the LPR may be eligible for a waiver of the ground of inadmissibility. Also, after acquiring legal permanent residency, the LPR is still subject to removal (deportation) for certain activity, such as drug-related offenses, aggravated felonies, crimes of violence, etc. The LPR may be eligible for relief from removal should he or she be placed in removal proceedings. However, once the LPR becomes a U.S. citizen, then he or she will not be inadmissible at the border or removable for certain activity.

The LPR may apply for naturalization three months prior to five years after the approval date of your legal permanent residency. If the LPR obtained legal permanent residency based on marriage and continues to live with the spouse sponsor, then the LPR may apply three months prior to the three year anniversary. Applying for a reentry permit does not negate the effect of a lengthy absence on the LPR’s ability to meet the naturalization requirements. Two of the naturalization requirements are the maintenance of legal permanent residency during the requisite three or five-year period (maintaining the US as his or her primary home) and physical presence for at least half of the three or five-year period (with certain exceptions). An absence of fewer than six months does not break an LPR’s continuity of residence; an absence of six months or more but less than one year breaks the continuity of residence unless the LPR can provide a reasonable explanation for his or her absence (an overseas assignment is most uniformly accepted); and an absence of one year or more automatically breaks the continuity of legal permanent residence (with certain exceptions for employment abroad).

Finally, the foreign national should keep track of all trips made outside the US until becoming a US citizen. The naturalization application requires that the applicant note each and every trip made since becoming a legal permanent resident with the date the applicant left and the date the applicant returned and all of the countries visited.