Just because a lawful permanent resident (LPR) holds a valid, unexpired permanent resident or “green” card, the card does not guarantee an LPR’s re-admission to the U.S. after foreign travel. Each time an LPR re-enters the United States, U.S. Customs and Border Protection ("CBP") scans the LPR's passport and permanent resident card and can examine a wealth of information about the LPR, including his or her comings and goings, plus information about the LPR’s immigration, residential, and employment history.
Each request for re-admission to the U.S. by an LPR gives CBP an opportunity to determine whether the LPR has abandoned his or her permanent resident status. This is true even if the permanent resident has a valid and unexpired permanent resident card and has been outside the U.S. for less than 365 days. [Common, and mistaken, immigration lore has it that presentation of a permanent resident card upon attempted re-entry within 365 days of one's last departure guarantees re-admission.]
For LPRs who have undertaken a temporary work assignment and residence abroad and who may be abroad for more than 180 days, there is an escalating risk that the foreign absence may trigger a CBP determination that the LPR has abandoned his or her intention to reside permanently in the U.S. CBP may confiscate the LPR’s permanent resident card and threaten the LPR with the prospect of returning abroad on the next outbound flight unless the LPR signs a written abandonment of his or her rights as an LPR. Further, even if CBP does not challenge the LPR’s immigration status, absences of 180 days or longer can impact the LPR’s eligibility for U.S. naturalization.
Therefore, both the employer and the employee should take protective steps in advance if the LPR truly will be abroad only temporarily (even if “temporarily” may mean a period of several years) and wishes to retain permanent resident status. These steps include:
- filing a re-entry permit application and completing the required biometrics before U.S. departure—this can take a month or longer to complete
- filing IRS 1040 U.S. resident income tax returns during the entire period of the foreign assignment
- keeping as many ties to the United States (such as a home, bank accounts, financial accounts, investment accounts, credit cards, recreational, social, religious and business memberships, U.S. driver license) as reasonably practical
- ensuring the foreign assignment agreement contains language affirming the temporariness of the foreign assignment and the foreign national's intention to resume U.S. residence after the assignment concludes
- determining the impact of the foreign assignment on eligibility for U.S. naturalization.
It is wise to plan months in advance for a foreign assignment to preserve permanent resident status and naturalization eligibility. However, even where the foreign assignment arises suddenly, protective steps can often be implemented even after the foreign assignment has started, particularly where the LPR has been absent from the U.S. for fewer than 180 days and can return for sufficient time to apply for a re-entry permit. For further information, please see our more expansive article on this topic at immigration website at: http://immigration.dinslaw.com/pre_per_res_stat.aspx.