Permanent residence not abandoned despite being outside the US for 2.5+ years - BIA

Many people with US permanent residence (green cards) want to know how long they can stay outside the US without abandoning their permanent residence. The Board of Immigration Appeals (BIA) recently made a very interesting decision in a case involving this issue. They ultimately considered that a person had not abandoned his permanent residence despite being outside the US for over 2.5 years.

In this BIA case, the foreign national (Mr. X) returned to the US in 2000, having been outside the US for 2 years and 9 months. On re-entering the US, Mr. X explained that he had left the US to care for his sick grandmother. The Department of Homeland Security (DHS) claimed that Mr. X did not leave to care for a family member and that he intended to abandon his lawful permanent resident status.

The BIA considered case history on this issue, including Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005). In Katebi, the court stated that "when an alien has a colorable claim to [permanent] resident status, the DHS has the burden to prove that the alien is not eligible for admission by clear, convincing, and unequivocal evidence."

The BIA, citing Katebi stated that

a permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.

Ultimately, the issue is one of intent, and not, as the Immigration Judge's opinion suggests, whether the absence from the United States was "necessary" in the first place...... In other words, a returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period; the key remains whether his activities are consistent with an intent to return to the United States as soon as practicable....

Factors to be considered in evaluating the alien's intent include the alien's family ties, property holdings, and business affiliations within the United States, and the alien's family, property, and business ties in the foreign country.

In the instant case, Mr. X took no steps to establish significant ties in Hong Kong that would show that he intended to live there permanently. Instead, he apparently spent his time caring for an elderly relative and helping his sister, who was going through a divorce while caring for two small children. The BIA notes that Mr. X "did not have traditional employment in Hong Kong, did not have significant income there or open a bank account, and did not attempt to secure housing for himself." In addition, Mr. X had lived in the US for about 12 years after becoming a permanent resident, and had considerable family ties in the US.


Despite the above decision, which is non-precedent, we still urge all permanent residents who will spend 6+ months outside the US to get re-entry permits to be safe. See prior posts on this issue: http://martinvisalaw.blogspot.com/search/label/reentry%20permit.

I have a green card, can I live outside the US for a few years?

People with permanent residence (green cards) often inquire as to whether they can live outside the US and still maintain their permanent residence (PR). Many people believe that if the green card holder returns to the US at least once every 12 months, there will be no risk of losing permanent residence. Immigration regulations do state that if a PR is outside the US for one continuous year, there is a presumption that PR has been abandoned. However, DHS (Department of Homeland Security) can decide that a person has abandoned PR after they have been gone for less than a year. The key is whether the person intended the stay abroad to be temporary, not the length of time outside the US.

If you want to live outside the US for 6 months or more, it is critical that you can show your intention to return to the US. This intent can be shown by as many of the following as possible:

1. Continuing to file US tax returns;

2. Keeping a house or other residence here;

3. Putting furniture and other belongings in storage rather than selling them;

4. Having some immediate family members staying in the US;

5. Definite plans to return to a job or studies in the US;

6. Maintaining memberships in clubs, church groups, etc in the US.

We recommend getting a reentry permit if you will be on an extended stay outside the US of 6 months or longer. A reentry permit allows a permanent resident or conditional resident to apply for admission to the US upon returning from abroad during the permit’s validity, without having to obtain a returning resident visa from the U.S. Embassy or consulate. A reentry permit does not guarantee admission into the United States. Aliens with reentry permits are still subject to inspection at the port of entry and may be denied admission if they are inadmissible.

Reentry permits are generally valid for 2 years from the date the reentry permit was issued. A 2^nd reentry permit might be approved for another 2 years, and therafter they are approved for one year at a time. You should apply for this benefit before leaving the United States. Ideally, you will file at least a few months before you leave, to allow time for the biometrics appointment to be scheduled before you travel.

For more information, please see these prior blog posts: http://martinvisalaw.blogspot.com/search/label/reentry%20permit

Can I "reactivate" an old green card?

People often wonder if they can enter the United States to work, using a permanent resident card (green card) that they got when they last lived here many years ago. These people have usually been outside the US, in their home countries, for years and are now considering returning to the US. Permanent residence is granted to a person on the basis, not surprisingly, that they intend to reside in the US.

If a permanent resident is going to work outside the US for 6 months or longer, we recommend that they apply for a re-entry permit. This is a document requesting permission to re-enter the US after an extended absence. Requesting a re-entry permit notified CIS in advance that you plan a protracted stay, however that you don't intend to abandon permanent residence.

A person who has returned to their home country for years and now wants to "reactivate" their green card is unlikely to have been filing for re-entry permits. In those situations, it is unlikely that immigration at the airport (CBP) will admit the person as a permanent resident. If CBP questions the traveller and finds out that the traveller has been living outside the US for years, CBP will almost certainly revoke permanent residence and confiscate the card. This is not an unreasonable action if a former permanent resident really has shown the intention of abandoning their US residence. It is likely that the CBP officer who revoke permanent residence will allow the traveller to "withdraw" their application for admission to the US. However, in the worst case scenario, the officer could conclude that the traveller had committed fraud in attempting to enter as a permanent resident. A finding of fraud means a permanent bar to ever entering the US, so this possibility, even if unlikely, should be considered very seriously.

Fingerprinting for re-entry permits

It is common, and recommended, for US permanent residents to file for re-entry permits if they will be spending long periods of time outside the US. In 2008, USCIS introduced a new requirement that applicants for re-entry permits needed to be fingerprinted before the permit would be issued. The biometric regulations were unclear as to whether an application would be abandoned if the foreign national left the US before having biometrics taken. The American Immigration Lawyers Association now believes that foreign nationals can leave the US and return for biometrics.

Biometric appointments are normally scheduled within about 30 days of CIS getting the I-131 (the application form for re-entry permits). However, foreign nationals often need to travel outside the US, usually to assume or resume the foreign position, sooner than 30 days after filing. In that case, the applicant can request expedited scheduling of the biometric appointment.

If the applicant gets an appointment and must leave before that date, she can try to walk into an Application Support Center (ASC, the office that takes biometrics) with proof of the imminent departure, and see if the ASC will take the biometrics. If the ASC refuses this request, or if the applicant does not get the appointment until after she has already left the US, she can reschedule. She can request a specific date, but CIS cannot schedule appointments more than 30 days in advance.

It is very important to attend the biometrics appointment, or request a reschedule to avoid the application being denied due to abandonment. The foreign national could reapply, but this is expensive and cumbersome.