Updated: December 11, 2018
Obtaining US lawful permanent resident (‘green card’) status is an accomplishment that often represents the culmination of years of work and significant financial investment. Lawful permanent residents (‘LPRs’) have the right to live indefinitely in the US, to work there for whomever they choose—or not at all—and to accrue time toward US citizenship, should they desire it. (For a discussion of the requirements for citizenship, see our article US Citizenship—Having It, Getting It, Giving it Up.)
LPR status, although ‘permanent,’ can be lost. In particular, LPRs who leave the US for extended periods of time, or who cannot show each time they return to the US that they are returning from a temporary absence abroad, may lose or jeopardise their hard-earned status. LPRs who travel frequently for business or pleasure or live outside the US must carefully consider how best to preserve their LPR status.
The only absolute rule in this respect is that an LPR who is outside of the US for one year or more will not be readmitted in LPR status based solely upon the presentation of his green card. If the returning LPR does not have a valid re-entry permit (see below), he will need to apply at a US embassy or consulate for a ‘returning resident’s visa.’
But simply returning to the US at least once a year, or even more often, does not guarantee that LPR status will be retained. (Contrary to urban myth, there is no such thing as ‘validating’ one’s green card by returning to the US briefly every six months or so.) When LPRs return to the US they must, in order to be readmitted in LPR status, show that their absence abroad was temporary, and that they are returning to an unrelinquished residence in the US. So what is considered a ‘temporary visit’ and how can one demonstrate that residence is unrelinquished? Unfortunately these questions are not easily answered, as many different factors are considered when the US immigration authorities evaluate a person’s claim to LPR status.
Generally, an absence from the US is considered ‘temporary’ if (1) it is for a relatively short period or (2) it will terminate upon the occurrence of an event that has a reasonable possibility of occurring in a relatively short period of time. An LPR must always show that while he was away he maintained a ‘continuous uninterrupted intention to return to the US.’ In deciding whether the person has in fact had such an intention, the immigration authorities will weigh factors such as the person’s family ties, property ownership, business affiliations, memberships in social organizations, employment and filing of US tax returns. A discussion of those factors can be found in the 1988 Board of Immigration Appeals decision Matter of Huang.
If an LPR anticipates that he will be spending significant periods of time outside of the US—for example, if he accepts employment outside the US—it may be wise to apply for a re-entry permit. This must be done before leaving the US. Although a re-entry permit does not guarantee admission to the US in LPR status, it does prevent the US immigration authorities from stripping LPR status based solely upon the duration of an LPR’s absences from the US. An LPR’s first re-entry permit is valid for two years and cannot be extended although subsequent permits may be possible, depending on the circumstances. The Department of Homeland Security regulations regarding re-entry permits can be found at 8 CFR Part 223.
We hope that this short article has been informative. However, it does not purport to cover all permutations of this issue and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.