Immigration Rumor : Travel by Permanent Resident
Posted Apr 19, 2002
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PLEASE NOTE : This article predates the restructuring of the government, which abolished the Immigration and Naturalization Service (INS) on March 1, 2003. The functions of the Legacy INS are performed now by the U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). All three of these government entities, USCIS, CBP, and ICE, are part of the Department of Homeland Security (DHS). Despite outdated references to the INS, the content otherwise remains correct. This article, refers to Port of Entry officers as being part of INS; the Port of Entry officers are now part of CBP. (Aug 22, 2008)
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At The Law Office of Sheela Murthy, we are always receiving eMails, phone calls, messages on MurthyForum, and questions on the weekly MurthyChat seeking facts. Whether the result of spreading an erroneous understanding of the law or being caught in media frenzy over an issue which is constantly changing, there are always items needing knowledgeable, clear-headed explanation. Immigrants can rely on the MurthyBulletin and MurthyDotCom to separate fiction from truth and to clarify those truths.
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There are certain common rumors and in U.S. immigration law with respect to travel outside the U.S. after obtaining permanent residence. Once one is a permanent resident, the green card (Form I-551) or the "temporary evidence of I-551" passport stamp is the appropriate document for gaining re-entry to the U.S. following an absence of less than one year. Based upon this rule, there is a mistaken belief that one can maintain permanent residency simply with brief, yearly visits the U.S. and never having an absence of more than a year. This is not the case.
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The "one year" rule has two requirements. The green card is the appropriate document for re-entry only if (a) the absence from the U.S. is less than a year AND (b) the person is returning to an un-relinquished, lawful permanent residence after a temporary absence. The mere return to the U.S. does not "revalidate" the green card; the INS can make a determination that the permanent residence status has been abandoned.
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Following 9/11, some Port of Entry (POE) Inspectors at U.S. international airports require a person with the I-551 stamp in the passport (who does not have the actual I-551 card) to go into secondary inspection. In these cases, keeping a copy of the approved labor certification and the approved I-140 petition may be helpful.
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In some instances, people travel between the U.S. and their home countries once every six months. Although helpful in some respects to avoid delays at the POE, again the mere re-entry every six months does not guarantee one's being able to file for U.S. citizenship or maintaining permanent residence. The real issue is whether a person intending to return to the U.S. as a permanent resident relinquished his/her permanent resident status by abandonment.
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The determination regarding abandonment is based upon a review of the specific facts of the case. The INS must determine if the absence from the U.S. was temporary or not. The temporary nature of the absence is not solely determined based on the number of days spent outside the U.S., but depends rather upon whether the individual had a continuous, uninterrupted intention to return to the U.S.
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INS looks at a person's behavior and ties to the U.S. to determine intent. Among the main factors considered are family ties, property holdings, business affiliations, length of stay outside the U.S. and local community ties. The INS will compare the existence of these factors in the U.S. vs. similar ties outside the U.S. The INS also considers U.S. tax filings, employment and whether there is a physical residence that has been maintained during the absence/s. Furthermore, in order to be regarded as temporary, the trip must have either a fixed termination date or be based upon an event that has a reasonable possibility of occurring within a relatively short period. Examples of the latter are travel abroad to temporarily care for a sick relative or to sell off personal assets abroad. The exact timeframe for the trip may not be known initially, but the travel must be for a particular, short-term purpose.
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Given the great lengths to which most people go in order to obtain permanent residence status, care should be taken not to abandon one's status, if that is not the intent.
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