Extended Travel by a Permanent Resident

On a recent show, we talked about residence requirements for Naturalization purposes. We still get a lot of inquiries from persons who are confused about maintaining their status as Permanent Residents. Some Permanent Residents want to go back to Vietnam frequently and spend a lot of time there. Or, they have a genuine need to travel abroad for longer periods of time.

In short, if you want to keep your Green Card, you must have the intention to live in the US permanently and you must actually spend most of your time living in America. If it looks like your intention is not to live in the US permanently, Customs and Border Patrol can withdraw your Green Card when you attempt to re-enter the US.

A Once a Year visit to the United States is not sufficient. A Green Card can be used to re-enter the US after being away for less than a year. But, this does not mean that you can maintain permanent residency just by making brief, annual visits to the United States. Visiting once a year can result in U.S. Customs and Border Protection (CBP) officer at the airport questioning your permanent resident status. In one case, a permanent resident stayed in Vietnam for 11 months a year and returned to the US for one month a year. Finally, CBP decided that this person’s actual place of residence was Vietnam and she was no longer entitled to permanent resident status in the U.S.

Basic Requirements After a Trip of Less Than a Year: The one-year rule has two requirements: (a) Absence from the US was for less than one year and (b) the individual is returning after a temporary absence to a permanent residence status that has not been abandoned.

Just by returning to the US once a year does not re-validate the Green Card. The Green Card is not like a florescent stamp that event staff put on your hand to allow you to come and go as you wish. DHS can decide that the permanent resident status has been abandoned even if the green card holder has visited the United States each year.

Just by coming back to the US every six months is not a guarantee of maintaining permanent resident status.

People return to the United States every six months because they think that if they are outside the US for more than six months it will mean that they have abandoned their permanent resident status. If you are outside the US for longer than six months, does that really mean you have abandoned your permanent residence? The answer depends on whether you really reside in the United States and have made it your permanent home.

An absence of more than six months can make CBP suspicious about your intention to live in the US permanently. The U.S. customs officer may require the person to prove he has fixed ties to the US (for example, filing of income tax returns, family members in the U.S., property ownership, bank accounts, and business affiliations.)

Abandonment Depends Upon Facts. The CBP officer at the airport can ask questions to determine if your absence from the United States was temporary and consistent with being a permanent resident. After a long absence abroad, the officer may want to see if you had a continuous, uninterrupted and realistic intention to return to the U.S. in the near future.

If there are long absences from the US, and if in Vietnam there are family ties, property ownership and business activities, this could be a problem. Failing to file tax returns or filing as a nonresident in the U.S. are also negative factors.

For a Permanent Resident, Travel Must Be Temporary. In all cases, the travel abroad must be temporary if you want to keep your Green Card. In order for time outside of the United States to be regarded as temporary, your trip must either have a fixed return date or be for an event that will happen within a relatively short time.

For example, CIS would understand if you traveled abroad temporarily to care for a sick relative or to sell off a property or to attend a wedding. Temporary work assignments may also be acceptable if you are working for a U.S. employer.

Family Medical Needs: Spending time abroad to care for aging or sick relatives may create problems. Permanent residents may need to travel to help their parents or other ill relatives. In some cases, this travel can be done without risking permanent resident status. For example, it would be acceptable if the relative's need for help is expected to be temporary. In other words, the relative is expected to recover within a few weeks or months. Or, if recovery is not expected, the condition has already declined and the end is likely to come fairly soon.

Being abroad for temporary care giver needs is not the same as providing more general, day-to-day care for aging relatives. The need to care for aging parents and other relatives living in the home country is understandable, but it does not allow unlimited absence from the US. Older relatives may need help as they age, but this condition can extend for many years - even decades.

A re-entry permit does not automatically preserve permanent resident status or guarantee re-entry into the U.S. following a prolonged absence. However, a re-entry permit helps to show that the permanent resident intended to return to the U.S. The re-entry permit also serves as a valid entry document after absences of more than one year.

What if a permanent resident is prevented from leaving Vietnam for an extended period because of illness? In that case, the permanent resident would apply at the US Consulate in Saigon for a Returning Resident Visa. He would need to show that he departed from the United States with the intention of returning and did not abandon this intention, and that his return to the US was delayed by reasons beyond his control, and for which he was not responsible.

When a permanent resident returns to the US, if the CBP officer believes that the traveler has not maintained permanent resident status, the person may only be allowed to enter the U.S. in order to appear at a hearing before an immigration court. An immigration judge will determine if the permanent resident has abandoned status.

The green card and the re-entry permit do not automatically guarantee that a person will be re-admitted to the US. This decision depends upon the facts of the situation, including prior travel patterns and the reasons for the extended travel. Those green card holders who are thinking about lengthy and/or repeated trips abroad should obtain advice well in advance of travel. Frequent or lengthy trips abroad require careful planning and understanding the risks and potential options.
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Q.1. If I have a re-entry permit that allows me to be outside the States for more than a year, do I need to file a tax return for that year, or if I file, can I claim to be a non-resident of the US?
A.1. Yes, you must file a tax return, and No, you cannot claim to be a non resident. Having a Green Card means you are a permanent resident of the US so you are responsible for paying income tax no matter what country you live in. You must pay US tax on income received world wide, unless you already pay foreign tax.
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Q.2. Can a permanent resident maintain US resident status when working for a US company abroad?
A.2. Yes, under certain conditions. He must be a permanent resident for one year before taking a job abroad. The employer in Vietnam must be a subsidiary of a U.S. company.
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Q.3. An unemployed permanent resident leaves the US with wife and children, closes his US bank account, goes to live in Vietnam to work for his brother’s company. He does not file US tax returns. Three years later he is offered a job in the US. What will CBP do if he tries to re-enter the US?
A.3. He clearly abandoned his US residence for three years. When he arrives at the airport in the US, CBP will probably take his Green Card and order him to take the next flight back to Vietnam.

ROBERT MULLINS INTERNATIONAL www.rmiodp.com www.facebook.com/rmiodp
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