Leaving on sabbatical? Returning green card holders must show their absence from the US was temporary.
Most green card holders assume that if they travel abroad and return within one year they will be automatically admitted back into the U.S. Unfortunately, this is not quite the case. This issue seems to arise frequently in our office at the start of summer, particularly when academics are leaving for sabbaticals or visiting professorships overseas.
It is important to remember that in order to be readmitted to the United States, a lawful permanent resident (LPR) is required to show that he or she acquired LPR status in accordance with the law, that he or she has retained that status from the time that it was acquired, and that he or she is “returning to an unrelinquished lawful permanent residence after a temporary visit abroad.”
Any LPR who returns to the United States after an absence may be questioned regarding whether he or she has abandoned or relinquished his or her LPR status even though he or she presents a specified valid entry document. Presenting a “green card” to the Customs and Border Protection (“CBP”) Inspector at the port of entry after an absence of less than a year provides no assurance that the LPR will be readmitted to the United States, for while the green card satisfies the requirement of presenting a valid entry document, its presentation is not evidence that the LPR is “returning from a temporary visit abroad.” Thus, the burden is on the returning LPR to establish that his or her visit abroad was intended to be “temporary” and that his or her actions have been consistent with that intention. The types of questions that are relevant in determining an LPR’s intent to retain LPR status include:
- Are the location of the immigrant’s family ties, property holdings and job primarily in the United States, rather than abroad?
- Is the LPR returning to the United States as a place of employment or business or as an actual home, rather than for a brief visit?
- Did the immigrant depart from the United States for a specific, short-term activity, rather than for employment or residence outside the United States of indefinite duration?
- Can the LPR be expected to return to the United States from abroad within a relatively short period of time?
- Can the date of the immigrant’s return to the United States be fixed by some early event, such as the termination of an overseas assignment, the immigration of a relative or the disposition of assets outside the United States?
- Did the immigrant file United States income tax returns as a “resident” taxpayer, regardless of whether any tax was owed, assuming the immigrant earned money (either inside or outside the United States) while absent? (Filing an income tax return as a nonresident taxpayer, claiming nonresident tax treaty benefits or failing to file a U.S. tax return are inconsistent with an intention to maintain lawful permanent resident status).
The more of these questions that can be answered affirmatively by the returning LPR, the more likely it is that CBP will consider that he or she maintained LPR status. In assessing the likelihood that CBP will readmit an LPR in that status, it is also important to consider his or her pattern of travel over the years since obtaining LPR status. If an LPR spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round-trip tickets both originating and terminating in a foreign country, CBP is likely to challenge that immigrant’s entitlement to LPR status at the time he or she seeks to enter the United States, particularly if those trips are to vacation or resort destinations.
In light of the possibility that a returning LPR might be denied entry and placed in removal proceedings if deemed to have abandoned permanent residence, it clearly is advisable to have proof that, at the time of departure, no abandonment of LPR status was intended. The best form of proof of this intention is a re-entry permit, applied for prior to the LPR’s departure from the United States. Our office practice is to advise clients to apply for a re-entry permit whenever they are contemplating trips overseas that will last more than six months.
We also remind our LPR clients that when they return after a trip abroad, it is important for them to understand their rights. The most important of these rights is the right to a hearing before an immigration judge if their permanent resident status is questioned by the immigration inspector. They should therefore not be subjected to “expedited removal”. Because of these potential pitfalls and traps awaiting an unsuspecting returning LPR, we advise our clients to remember their rights and to keep their wits about them at all times when they apply for entry back into the U.S.