How to Keep Your Green Card: Stay In and Stay Out of Trouble

Thursday, May 17, 2007
Contributed by: Charles A. Mallard

Once you receive a green card, there are only two conditions required to keep it for life.

First, you must not become removable or inadmissible. The most common way of becoming removable or inadmissible is being convicted of a serious crime. Second, you must maintain your U.S. permanent residence. Permanent resident status is not automatically lost by a lengthy absence abroad, but an extended absence is one factor that is taken into account by the Immigration Service in judging the alien's intentions. The key factor is the alien's intentions, but a mere statement of intent to remain a U.S. resident is not controlling; rather, the Immigration Service will look at objective facts that indicate the alien's intent. The major factors the Immigration Service analyzes to determine the alien's intent include:

  • the length of the alien's absence
  • the purpose for the alien's departure
  • the existence of facts indicating a fixed termination date for the stay abroad
  • the continued filing of U.S. tax returns as a resident of the U.S.
  • the maintenance of other ties with the U.S., such as ownership of property, bank accounts, credit cards, driver's license, etc.
  • the location of the alien's close family members
  • the location and nature of the alien's employment, e.g., U.S. v. foreign employer, permanent v. temporary employment abroad, fixed-term employment contract, etc.

One factor has no bearing on the alien's retention of lawful permanent resident status: A return trip to the U.S. once a year for several weeks. Some permanent residents hold the mistaken belief that they can simply return to the U.S. once a year for several weeks in order to continue to be considered permanent residents. Their confusion is based on the rule that an alien must return to the U.S. within one year of departure in order to use his or her green card as a reentry document, as opposed to needing some additional documentation such as a reentry permit or a special immigrant visa. Merely returning to the U.S. and using the green card once a year, however, has no bearing on the separate question regarding whether the alien has maintained the intention to remain a U.S. permanent resident. Many aliens have lost resident status because, apart from returning to the U.S. once a year, they did not maintain sufficient ties with the U.S. to indicate that they considered the U.S. their permanent home.

The alien who will be abroad for a considerable period of time must take certain steps to assure that permanent resident status will not be lost. In all cases, the alien must continue to file U.S. tax returns as a resident. This rule does not necessarily mean that the alien must actually pay U.S. income taxes if he or she is employed abroad, since tax treaties and foreign tax credits may minimize the amount of tax that actually has to be paid. Even so, the alien must file a resident tax return and claim his or her worldwide income on the return, even if he or she can exempt most of this income from taxation. Failure to follow this rule is quite likely to lead to a loss of permanent resident status.

Other important steps include:

  • The maintenance of a U.S. address, even if it is at the home of a friend or relative. Even better is the continued ownership of U.S. property. For example, a person assigned abroad may want to rent, rather than sell, his or her U.S. residence.
  • If the alien is assigned abroad by a U.S. employer, a written statement should be obtained from the employer specifying the terms and length of the assignment. The statement, if possible, should include a statement that the alien will be reassigned to the U.S. upon completion of the foreign assignment.
  • If the alien is undertaking employment abroad for a foreign employer on a special project or temporary assignment, he or she should obtain an employment contract or written statement specifying the terms and length of employment. If the employment will lead to a transfer back to the U.S. to a U.S.-based affiliate of the foreign employer, the contract or statement should include this fact. If the employment is essentially indefinite, and no contract or statement can be obtained, the alien should be especially careful to maintain as many of the other ties to the U.S. as is possible.
  • The alien should leave open and continue to use U.S. bank accounts. For example, some employers, when assigning an alien overseas, will continue to pay the alien in U.S. dollars, depositing the amount directly into the alien's U.S. account. Likewise, U.S. credit accounts should be maintained, and the alien should continue to renew his or her U.S. driver's license.
  • If the alien is not employed by a U.S. employer and all family members are abroad, he or she must be able to document a good reason to be out of the U.S. for a prolonged period, particularly if he or she has not yet established such ties as property ownership and financial transactions in the U.S. This situation sometimes arises when, soon after becoming a resident and before actually establishing firm roots in this country, the alien is called upon to take care of family business abroad, such as liquidating personal assets, administering the estate of a deceased relative, or caring for a sick family member. While these reasons for a lengthy absence can be accepted as legitimate, they should be well documented.

On the other hand, remaining outside the U.S. for more than one year does not automatically cause the loss of your green card. If your absence was intended from the start to be only temporary, you may still keep your permanent resident status. Staying away for more than one year does mean, however, that you may no longer use your green card as a U.S. entry document. Under these circumstances, you must either apply at a U.S. consulate for a special immigrant visa as a returning resident or you must get what is known as a reentry permit.

Reentry permits are for people who hold green cards and know in advance that they must be outside the U.S. for more than one year. Under such circumstances, USCIS can allow you to stay away for up to two years. You should apply for this privilege before leaving. If the application is approved, a reentry permit will be issued. The permit will help you prove that your absence from the U.S. is not an abandonment of residence. It also serves as an entry document when you are ready to return. Reentry permits cannot be renewed and can be applied for only inside the U.S.

If you stay outside the U.S. for more than one year and do not get a reentry permit before leaving, then in order to come back again, you must apply at a U.S. consulate abroad for a special immigrant visa as a returning resident. To get this visa you will have to convince the consular officer that your absence from the U.S. has been temporary and you never planned to abandon your U.S. residence. You will have to show evidence that you were kept away longer than one year due to unforeseen circumstances. Such evidence might be a letter from a doctor showing that you or a family member had a medical problem.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.