SERNA & ASSOCIATES PLLC
ATTORNEYS AND COUNSELORS AT LAW
20985 IH 10 WEST.
SERNA BUILDING
SAN ANTONIO TEXAS 78257
(210) 228-0095-MAIN
(210) 228-0839- FAX
Maintenance of Permanent Residence Status
Once an individual has obtained their Legal Permanent Residence through the various possible avenues, the maintenance of that status becomes an ongoing concern. This paper will identify the basic criteria used to determine abandonment of permanent residence and the different ways to avoid the loss of permanent residence.
Legal Permanent Residence, or more commonly known as the green or alien resident card, is a permanent visa to live work in the United States for an indefinite period, as long as certain conditions are met. The green card (Form I-551) is used as evidence of U.S. permanent residence for identification, employment, eligibility and entry to the U.S. However, at the time of entry to the U.S. , the possession of the green card does not guarantee admission. The permanent resident is still subject to inspection by the Immigration and Naturalization Services (INS) to determine qualification for entry. The card is used as evidence to establish an un-relinquished lawful permanent residence after a temporary absence not exceeding one year.
An individual may depart the U.S. for a period of six months or less without affecting permanent residence status. However periods of more than six months but less than one year are presumed to break one's residence, unless evidence is proven otherwise. Departures for more than one year break one's residence and may be deemed a bar to re-entry as a permanent resident. It is a common misconception that merely returning to the U.S. for a short period of time within one year is sufficient to revalidate permanent residence.
The INS considers several different criteria for determining the abandonment of permanent residence. Of the below mentioned criteria, no one single factor is determinative. The INS considers the evidence in its totality.
INS Criteria for Abandonment of Legal Permanent Residence
1. Purpose for the departure;
2.
Existence of a fixed termination date for the visit abroad;
3.
Was it a temporary departure from the U.S. ? (Temporary is absence for a relatively short time, fixed by an event, or absence that will terminate upon the occurrence of an event);
4.
Objective intent to return to the U.S. considering the following factors:
Family ties;
Employment;
Mortgage;
Club membership; and
Filing of tax returns as a resident.
If the permanent resident has been outside of the U.S. for more than six months and the INS believes there has been an abandonment of residence, the burden is upon the permanent resident. Once the permanent resident has made a legitimate and plausible claim to show their permanent residence, the burden of proof shifts to the government. The INS has the burden of proving that individual abandoned their residence by clear unequivocal and convincing evidence. This is an extremely high burden of proof favoring the permanent resident.
Steps to Avoid Abandonment of Legal Permanent Residence
There are three steps that can be taken to avoid the legal permanent residence status:
• Re-Entry Permit;
• Special Immigrant Visa; and
• An approved Application to Preserve Residence for Naturalization Purposes.
1. Re-Entry Permit
A Re-Entry permit is obtained from the INS by filing an Application for Travel Document (Form I-131) with a copy of the green card at the INS Nebraska Service Center . The permit allows a permanent resident to remain outside of the U.S. for more than one year without fear of loss of residence. Application for the Re-Entry permit must be submitted while the permanent resident is in the U.S. The document, which looks like passport, is issued for a period of two years. Although it may not be renewed, additional permits will be given upon return to the U.S. and submission of a new application. Subsequent applications require the return of the original Re-Entry permit as well as evidence of permanent residence. If an individual remains outside of the U.S. after the expiration of the Re-Entry permit, the permanent resident must go to the U.S. Consulate to apply for a Special Immigrant Visa in order to re-enter the U.S.
2. Special Immigrant Visa
A special Immigrant Visa is an application for admittance to the U.S. made once an individual has been outside of the U.S. for a period of more than one year. The application (Form OF-230) requires evidence of legal permanent status, an intention to return at the time of departure, and a temporary visit abroad or reasons why the stay became protracted. They U.S. Consular officials will review the evidence and determine whether the individual qualifies for issuance of the Special Immigrant Visa.
3. Application to Preserve Residence
Application to Preserve Residence for Naturalization Purposes (Form N-470) is made when a permanent resident, who has been residing in the U.S. for at least one year, has been transferred to work abroad by a U.S. employer to develop foreign trade or to protect the employer's property rights. The application may be made if the person has not been outside of the U.S. for one continuous year although the individual is currently outside of the U.S. An approved application preserves the U.S. residence for naturalization purposes and considers the time actually spend abroad as time spent in the U.S. The application may be used by individuals who qualify but do not necessarily have the intent to become U.S. citizens.
Depending on the situation, securing any one of the three previous documents preserves legal permanent residence status. Hopefully, there will be time to consider the needs of the individual and the time of expected travel abroad. With advance notice the Re-Entry Permit or the Application to Preserve Residence for Naturalization Purposes are the best options. However, if a person has been outside for less than one continuous year, the Special Immigrant Visa or the Application to Preserve Residence for Naturalization may be the only solution.
Basics for Maintaining Legal Permanent Residence Status
The following is a list of steps that may be taken to provide evidence that one's permanent residence has not been abandoned. Remember no one single factor is crucial, the INS will consider the evidence in its totality.
1. Length of departures (NEVER more than 6 months);
2.
File U.S. tax returns as a resident (NEVER file as a non-resident);"
3.
Own property in the U.S. (car, house, apartment);
4.
Maintain a valid U.S. driver's license;
5.
Maintain auto insurance;
6.
Maintain active credit cards and bank accounts;
7.
Maintain close family ties; and
8.
Maintain U.S. employment.
Conclusion
To maintain legal permanent residence in the U.S. is to plan for the future. Take steps now to protect the status granting you the right to live and work in the U.S. With little or no expense and some planning, legal permanent residence status can easily be maintained.
