How to Avoid Green Card Abandonment for Time Spent Abroad: The Reality Versus Common Misconceptions

Within immigration law, there is often a conflict between the actual law and what many perceive to be the law based on enforcement or simply ambiguous legal principles. One of the most common scenarios where we see this disconnect pertains to how long a lawful permanent resident can remain outside of the United States without abandoning their green card. This question begins with the somewhat logical proposition that to be a lawful permanent resident of the U.S., you must maintain your principal residence in the U.S. However, from here, the legal analysis becomes clear as mud. Turning to the INA (the Immigration and Nationality Act), residence is defined as:

“the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” INA 101(a)(33).

The two controlling phrases in this definition appear to be “general” abode and “principal, actual dwelling place”, yet both of these phrases begs the question, how much of my time must I spend at my abode so that my abode is my residence? Logically, one might interpret this as you must spend the majority of your time at your U.S. abode in order to maintain a U.S. residence. This is the conservative approach and what I suggest to my clients.

However, the law has developed in such a way that the determinative question has been transposed and focuses on your time outside the U.S., rather than your time within the U.S. Namely, the law focuses on whether any trip abroad was “temporary”. To make matters more confusing, temporary trips abroad can in fact be quite lengthy, and even span a number of years if a person obtains a special document called a “reentry permit.”

The fundamental legal question then that immigration will ask to determine whether a person has abandoned their U.S. residence is “are they returning to an unrelinquished lawful permanent residence after a temporary trip abroad.” Whether a trip is “temporary” turns on what ties you have maintained in the U.S. such as:

1. An actual physical dwelling in the U.S. (you either own a home or continued to pay rent during your trip abroad)
2. Family members in the U.S. (who did not travel with you during your trip abroad)
3. Paying U.S. taxes (not filing taxes or filing as a non-residence are strong indications that you may have abandoned your residence)
4. Maintaining a job in the U.S.
5. Owning other property in the U.S.

An additional test of whether a trip abroad is temporary is whether there exists a fixed termination date of the trip abroad, or whether a particular event will terminate the trip. For example, a trip might be deemed temporary if it will end upon liquidating assets or after taking care of a sick relative.

The law above is often misunderstood based on CBP’s (customs and border protection) enforcement guideline of not inquiring about potential abandonment of your green card if your trip abroad was less than 6 months. This has spawned the popularly repeated fallacy that you are in compliance with your LPR status as long as you return to the U.S. every 6 months, even if you only spend a few days in the U.S. each time. This is simply false. While CBP may not take your green card at the airport or land port of entry, you still risk abandonment of your green card. The most common scenario where the issue may arise is when you apply for naturalization. Additionally, CBP will eventually inquire and may even take your green card based on extensive time abroad, particularly as technology has become more advanced and officers can quickly see and calculate how much time you have spent abroad.

So, what are the practical tips from the above hazy principles of how to maintain your residence in the U.S. Here are my guidelines:

1. Ideally, spend the majority of your time in the U.S. each year.
2. If you must travel at such a frequency that you will be spending the majority of your time outside the U.S., or must spend more than 6 months at one time outside of the U.S., you must maintain ties and proof that your principal dwelling and general abode continues to be the U.S. (which in turn requires proof that the trip abroad is temporary).
3. Always file U.S. taxes, which is required for all lawful permanent residents, regardless of how much time you spend abroad in any given year. Never file as a non-resident.

As you can see, this area of law is particularly complicated. If you have run afoul of these guidelines or you have any questions related to how your absences abroad will be treated during a naturalization application, please give us a call.