Re-Entry Permit Guidelines and Maintaining Permanent Resident Status
Many lawful permanent residents ("LPR") relax when they obtain their resident alien card, believing that they can finally travel freely back and forth, or even relocate to their home countries, while maintaining the privilege to return to the U.S. upon presenting their permanent resident cards at a U.S. port of entry. However, since LPR status is not a legal right but a revocable privilege, and a lawful permanent resident remains an "alien", LPRs should be aware of laws governing the maintenance of LPR status and steps to minimize the risk of that status being taken away. This article will explain applicable laws and common misconceptions on maintaining the LPR status and explain the role re-entry permits have in protecting LPR status.
Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), a returning LPR is not regarded as "seeking admission" when arriving from abroad unless he or she: (1) has abandoned or relinquished that status; (2) has been absent from the U.S. for a continued period in excess of 180 days; (3) has engaged in illegal activity after having departed the U.S.; (4) has departed from the U.S. while under legal process seeking his or her removal from the U.S.; (5) has committed certain criminal offenses and has not been granted relief from those offenses; or (6) enters or attempts to enter without inspection by an immigration officer.
Many LPRs interpret this provision as allowing them to maintain their LPR status simply by returning to the U.S. at least once every six months. Unfortunately, this is a mistaken belief, as returning LPRs are considered "arriving aliens" subject to inspection and may still be challenged by an Immigration Officer at the port of entry if the officer has reason to believe that the LPR has abandoned his or her status. This is the case even if the absence from the U.S. was for less than 180 days. If the returning LPR is thought to have abandoned his or her lawful permanent residence, no matter how brief the absence is, he or she may be determined inadmissible as an intending immigrant without a valid immigrant visa.
In order to show that an LPR has not intended to abandon permanent residency, the LPR may need to show that he or she has maintained sufficient ties to the U.S. by taking the following actions: filing tax returns as a U.S. resident; maintaining family ties in the U.S.; maintaining a U.S. mailing address; keeping bank accounts in the U.S.; keeping a valid U.S. driver's license; owning a home or running a business; and providing evidence explaining the definite and temporary nature of the absence from the U.S.
An LPR that has maintained sufficient ties to the U.S. and has been absent from the U.S. less than a year may use the green card as a re-entry document. If, however, he or she plans to be absent from the U.S. for more than a year, an application for a re-entry permit should be made before departing from the United States. A re-entry permit is a document that establishes that, at the time of an immigrant's departure from the United States, no abandonment of LPR status was intended. In other words, an LPR in possession of a valid re-entry permit who is otherwise admissible cannot be found to have abandoned status solely on the duration of an absence. However, since mere possession of a re-entry permit will not protect an individual who lacks the intent to maintain permanent residency, it is important to take actions mentioned above at all times to minimize the risk of his LPR status being taken away.
LPRs can apply for re-entry permit by filing I-131, Application for Travel Document, and completing biometrics. It is important to note that, pursuant to the new USCIS instructions effective March 5, 2008, applicants are required to be physically present in the U.S. at the time of filing and complete biometrics before departing the U.S. Therefore, LPRs are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their biometrics appointments.
A re-entry permit can be issued for a maximum of 2 years at a time, and a new application for another 2 years can be made on the expiration of the previous permit. However, only a permit good for one year will be issued at a time if the LPR has been outside the U.S. for more than four years in the aggregate since gaining his LPR status or in the last five years, whichever is less.
Some LPRs believe that they will be considered to be continuously resided in the U.S. if they have a re-entry permit. This is not correct. An extended absence, i.e., longer than 6 months, from the U.S. on a re-entry permit, will still break the continuity of residence in the U.S. for naturalization purposes, while it may not affect the permanent residence status. In very limited cases, an LPR can apply to preserve U.S. residence by filing N-470 if the applicant was physically present in the U.S for one continuous year after gaining LPR status.
LPRs who travel abroad must be sure they have proper documentation to allow them to return to the U.S. Those who plan frequent trips abroad or a lengthy absence, should seek legal advice on the best strategies to preserve their permanent residency.
If you have questions on maintaining your LPR status or other immigration matters, please feel free to contact us at (847) 763-8500.
Disclaimer: The materials contained herein have been prepared by Immigration Law Associates, P.C. for informational purposes only. The materials on this or associated pages, documents, comments, answers, e-mail, articles or other communications related to this article are not to be considered as legal advice for any individual case or situation. The materials and /or transmission of the information are not intended to create and receipt does not constitute an attorney-client relationship.