Don’t Let Travel Outside The U.S. Jeopardize Your Permanent Residency Status

Individuals who obtain status as a Lawful Permanent Resident (LPR) often still have family in other countries, or simply a desire to travel.  One of the most common questions they have is whether they can travel abroad and retain their status. The short answer is, “it depends.”

It is important to first understand the difference between status as a LPR and the “green card” that serves as evidence of that status. Although your green card contains an expiration date, your LPR status does not expire on that date. Rather, that date only indicates when you must apply for a new card. Although it doesn’t expire, status as an LPR is not actually “permanent” in the sense that it can be lost or revoked.

Upon returning from travel abroad, individuals, including LPRs, are subject to inspection by U.S. Customs & Border Protection (CBP). During these inspections, CBP may try to determine whether an LPR is a “returning resident” or should be treated as an “arriving alien.” The difference between the two categories essentially boils down to whether the individual is considered to be seeking “admission” into the United States. Section 101(a)(13)(C) of the Immigration and Nationality Act (INA) lists the circumstances under which an LPR may be regarded as seeking admission. Included in that list are individuals that (1) have abandoned their LPR status and (2) have been absent from the U.S. for a continuous period in excess of 180 days. The importance of this distinction is that individuals seeking admission are subject to INA § 212(a), which lists grounds of inadmissibility, whereas LPRs are not. However, continuous absence from the U.S., even in excess of 180 days, does not automatically constitute a finding of abandonment. Furthermore, an LPR determined to be seeking admission to the U.S., even if alleged to have abandoned their status, has the right to a hearing before an immigration judge.

So, how does one abandon their LPR status? To answer that, we must look to the relevant case law. To avoid abandoning LPR status, the individual must only make a “temporary visit” abroad. Whether an individual’s trip is a “temporary visit” does not center on the time spent outside the U.S., so much as it does on the intent of the individual. In Matter of Kane, the Board of Immigration Appeals (BIA) stated three factors that should be considered in determining the subjective intent of an individual:

  1. Purpose for Departing: The individual should have a “definite reason” for making a trip abroad;
  2. Termination Date: The termination of the trip abroad should be expected to terminate “within a period relatively short, fixed by some early event”;
  3. Place of Employment or Actual Home: The individual must intend to return to the U.S. as a place of employment or business and as an actual home.

Thus, when considering whether traveling outside of the U.S. will jeopardize your status as an LPR, the focus should be less on how long you are traveling for and more on your subjective intent to return to the U.S.  Moreover, the general intent to return at some point in time and the subjective intent to maintain your LPR status is not sufficient. It is necessary that you have a certain date of return. In determining your intent, factors such as place of employment and family ties in the U.S. may be considered. To be safe, it is always best to consult with an experienced immigration attorney before any travel outside of the country. This is particularly true if you are an LPR traveling abroad for an extended period or you must consistently travel abroad.

Marissa Young
Associate Attorney
David Swaim & Associates