UNITED STATES IMMIGRATION
By Anthony Korda, Esq., The Korda Law Firm
As discussed in my last article “The Immigration Consequences of Losing Permanent Resident“, it is possible to surrender permanent resident status, and it is possible to lose that status by rescission or removal. However, it is also possible to lose permanent resident status unintentionally, by failing to maintain it and this could have serious consequences including tax liability.
There are some things a permanent resident must do to maintain permanent resident status. These are also important to remember if an application for U.S. citizenship is to be made in the future.
Do not leave the United States for an extended period of time or move to another country to live there permanently.
File federal, state and, if applicable, local income tax returns.
Register with the Selective Service, if you are a male between the ages of 18 and 26.
If you move, notify your new address to DHS.
Keep Your Immigration Status
Permanent residents who leave the United States for extended periods, or who cannot show their intent to live permanently in the U.S., may lose their permanent resident status. Many immigrants believe they can live abroad as long as they return to the U.S. at least once a year. This is incorrect. If you think you will be out of the U.S. for more than 12 months, you should apply for a re-entry permit before leaving the country. You should file Form I-131, Application for a Travel Document. You can get this form at http://www.uscis.gov or by calling the USCIS Forms Line at 1-800-870-3676. You must pay a fee to file Form I-131.
A re-entry permit is valid for up to two years. You may show the re-entry permit, instead of a visa or your Permanent Resident Card, at a port of entry. Having a re-entry permit does not guarantee that you will be admitted to the United States when you return, but it can make it easier to show that you are returning from a temporary visit abroad. Visit http://www.state.gov or your nearest Department of State Consular Office overseas for more information.
File Tax Returns
As a permanent resident, you must file income tax returns and report your income to the Internal Revenue Service (IRS) and your state, city, or local tax department, if required. If you do not file income tax returns while living outside of the U.S. for any length of time, or if you state that you are a “non-immigrant” on your tax returns, the U.S. government may decide that you have given up your permanent resident status.
Register With the Selective Service
If you are a man and you are 18 to 26 years old, you must register with the Selective Service. When you register, you tell the government that you are available to serve in the U.S. Armed Forces. The United States does not have a military draft now. This means that permanent residents and citizens do not have to serve in the Armed Forces unless they want to.
You can register at a United States post office or on the Internet. To register for Selective Service on the Internet, visit the Selective Service website: http://www.sss.gov . To speak with someone from the Selective Service, call 847-688-6888.
You can also find information on the USCIS website http://www.uscis.gov .
Give Your New Address to DHS
Every time you move, you need to tell DHS your new address. You must file Form AR-11, Alien’s Change of Address Card. You must file this form within 10 days of your move. There is no fee to file this form. You may change your address online via an electronic AR-11 form at http://www.uscis.gov . Change of address online also accepts address changes for most pending cases.
For more information, call USCIS at 1-800-375-5283 or visit http://www.uscis.gov .
If You Are a Conditional Resident
You may be in the U.S. as a conditional resident (CR). You are a CR if you were married for less than two years to your U.S. citizen or permanent resident spouse on the day your permanent resident status was granted. If you have children, they also may be CRs. Some immigrant investors are also conditional residents.
A CR has the same rights and responsibilities as a permanent resident. Conditional residents must file either Form I-751, Petition to Remove the Conditions on Residence, or Form I-829, Petition by Entrepreneur to Remove Conditions, within two years of the date they were granted conditional permanent resident status. This date is usually the expiration date of your Permanent Resident Card. You should file these forms within 90 days of the two-year anniversary of when you got your conditional resident status. If you do not do this, you can lose your immigration status.
Legal Permanent Resident (LPR) status is not a legal right but a revocable privilege, which means that an alien may lose his/her LPR status even after he/she has already received a Green Card. Although he/she is an LPR, he/she remains an "alien." It is therefore possible for him/her to lose LPR status under certain extreme circumstances.
Loss of LPR status occurs when an LPR abandons his/her permanent residence in the U.S., or when he/she becomes deportable for committing a serious crime or violating immigration laws and regulations. This article focuses on the topic of abandonment, i.e., failing to maintain permanent residence in the U.S.
Many LPR’s relax when they obtain a Green Card, believing that they can finally travel freely back and forth or even relocate to their home countries, and that they can always re-enter the U.S. using their Green Cards as a travel document. While a lengthy absence from the U.S. does not automatically cancel the LPR status of an alien, an extended absence may trigger the inquiry of the USCIS as to the alien's intention to remain a permanent resident of the U.S.
The Factors Indicating Intent
The intent of an LPR to remain a permanent residence in the U.S. is a key factor in the USCIS's determination of whether the LPR has abandoned his/her permanent residence in the U.S. However, a mere oral or written statement of intent to remain a U.S. resident to the USCIS is not sufficient. Apart from the length of the absence from the U.S., the USCIS will look to many objective facts that reflect the LPR's intent. The major factors that are considered in determining the LPR's intent include:
The length of the LPR's absence from the U.S.;
The purpose for the LPR's departure;
The existence of facts evidencing a fixed termination date for the stay abroad;
The continued filing of U.S. tax returns with the IRS in a resident status;
The location of the LPR's close family members;
The location and nature of the LPR's employment abroad;
The maintenance of other ties with the U.S. including mailing address, bank account, ownership of property, driver's license, club membership(s), mortgage, credit card, etc.
The Totality Test to Determine the Alien's Intent
No single factor in the above list is controlling with regard to the alien's intent to maintain legal permanent resident status in the U.S. The USCIS officers will analyze all relevant factors and look to the "totality of the circumstances" to decide.
As a general rule, if an LPR leaves the U.S. for one year or less, he/she can use a Green Card as a reentry document. By contrast, when an alien is absent from the U.S. for more than one year, he/she may have a difficult time reentering the country because the USCIS takes the position that an absence of longer than one year in duration indicates a possible abandonment of U.S. residency. LPR’s who have been out of the U.S. for more than one year will need to obtain reentry permits or special immigrant visas.
Many permanent residents accordingly believe that in order to keep their LPR status, they can simply return to the U.S. once a year and stay for several weeks; this is an error. Merely returning to the U.S. and using the Green Card once a year has little bearing on the question of whether the LPR has maintained the intention to remain a permanent resident of the U.S. In fact, although some aliens return to the U.S. more often than once a year, they lose their LPR status because they lack sufficient ties with the U.S. indicating that they consider the U.S. to be their country of permanent residence. An LPR alien may have multiple residences, but he/she must show that the U.S. residence is the permanent one.
Therefore, all LPR’s who wish to keep their Green Cards should take the steps necessary to establish sufficient facts evidencing that they are maintaining strong ties with the U.S. and retaining the U.S. as their permanent home.
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ABOUT THE AUTHOR: Anthony Korda, Esq., is the owner of The Korda Law Firm with offices located in Naples, Florida; Beverly Hills, California, and a presence in London. He is admitted to the Bars of California and DC and is a Barrister of the Supreme Court of England & Wales, where he is authorized to accept Direct Access cases. LEARN MORE ABOUT ANTHONY
