Maintaining Lawful Permanent Resident Status: the Continuous Physical Presence Requirement

Maintaining Lawful Permanent Resident Status: the Continuous Physical Presence Requirement

Lawful permanent residents may lose their status if they leave the US for extended periods of time. It is important for permanent residents to consider this when planning extended trips abroad because there are some steps that can be taken to preserve status as a permanent resident even when leaving the US.

Short trips abroad should not be a problem for permanent residents. If the trip is relatively short or fixed by a certain event, such as a family member’s wedding or caring for a sick parent, for example, it is unlikely that a permanent resident will be deemed to have abandoned status. Permanent residents can leave the US for up to one year and use a green card as sufficient documentation to re-enter. If a permanent resident leaves the US for over one year, this is considered possible abandonment of permanent residency. Keep in mind that returning once a year for a limited duration is not enough to preserve permanent residency. Permanent residents need to show a continued intention to live permanently in the US. Returning to the US once a year for one or two months is generally not enough to reflect this intention.

Permanent residents who leave the US for an extended period may be deemed to have abandoned their status unless they can prove their continued, uninterrupted intention to return to the US. This intention is determined on a case-by-case basis. Examples of factors that could be used to determine an intention to return include:

  • Facts concerning the temporary nature of the absence from the US
  • Family ties
  • Employment ties
  • Ownership of property
  • Business affiliations
  • Nature of the obligations abroad
  • Amount of time the permanent resident resided in the US before leaving
  • US bank accounts
  • Current driver’s license in the US state of last residence
  • Maintaining membership in local and professional organizations
  • Filing of tax returns in the US as a resident

Permanent residents who are planning to be outside of the US for more than one year should apply for a re-entry permit before leaving the US. A permanent resident with a valid re-entry permit cannot be deemed to have abandoned status as a permanent resident solely because of time spent abroad while the re-entry permit is still valid. But a re-entry permit alone is not enough to show that a permanent resident has maintained status. The permanent resident must also be able to otherwise demonstrate an intent to return through factors such as those listed above. Re-entry permits are valid for a maximum of two years. They will only be granted for one year if the permanent resident has been outside of the US for more than four years in total since becoming a permanent resident or in the last five years.

Permanent residents may also consider becoming US citizens before leaving the US for an extended period of time, if they qualify to apply for naturalization.  US citizens may leave the country indefinitely and return with a valid US passport.

Unfortunately there is no hard and fast rule for determining whether someone has abandoned lawful permanent residence. The determination is very fact specific and the USCIS will look at the total circumstances of the permanent resident before making a decision. Permanent residents should take steps to establish their intent to return before leaving the US for an extended period of time.