Each year, roughly one million people receive permanent residence status – otherwise known as a green card – in the United States. While the word “permanent” may imply that you can hold this status indefinitely no matter what, don’t be fooled. Immigrants who acquire lawful permanent residence, then return to their home country believing they can simply visit the U.S. periodically to maintain status, are in for a rude awakening at the border.
Being abroad for more than six months is the test employed by U.S. Customs and Border Protection officers to determine whether you should be questioned in more detail about your absence. Make no mistake, being under such scrutiny is serious business and you could lose your green card as a result.
For example, in a case decided many years ago, a mother and her two children had resided in Japan except for brief annual visits to the U.S. Officials raised a red flag and a court eventually found that she had abandoned her lawful permanent residence because: (1) she had stayed with her sister-in law during her brief visits in spite of her ownership of a house in the U.S.; (2) she had never lived or worked in the U.S.; (3) her children had gone to school in Japan; (4) she had worked and bought a house in Japan; (5) there was no firm projected date for the family’s return to the U.S, i.e., they came back when they felt like it, not because they needed to.
When you enter the United States as a permanent resident, you should always present your green card to border officials. A green card establishes your prima facie right to enter the country and so long as you have not been away from the United States for more than six months, you will be routinely allowed to return. A failure to show your green card may be interpreted as an indication that you have abandoned your permanent residence. I learned this the hard way myself when I lost my green card to a U.S. border official back in the 1970s.
What Is A “Permanent Residence?”
Under U.S. immigration law, permanent residence is defined by domicile. Domicile is a legal term that might best be described as your “home,” as opposed to where you “reside.” For example, a person might have residences in Paris, London and New York, but only one domicile – that is, a place he or she regards as “home.” Domicile, under American law, is a subjective mental ingredient that connotes long-term attachment to a place of residence.
When a green card holder seeks to return to the United States, the intention of the person is key. Since border officials cannot read your mind, they try to infer your intentions based on what paper evidence you provide plus your answers to their questions. Imagine a set of scales: on one side is evidence of a U.S. domicile, on the other, evidence of a foreign domicile. The officials will attempt to gauge which one best fits the domicile definition.
The process normally begins with a few questions:
- Where do you live?
- How long were you away?
- What was the purpose of your trip?
These questions aim to reveal key deciding factors about you:
- Purpose for departing. You should normally have had a definite reason for going abroad temporarily. A cruise, a ski trip, a business meeting. Not, “Because I felt like it.”
- Termination Date. Your visit abroad should have been expected to terminate within a relatively short period, fixed by some early event. For instance, you went to attend a wedding. If unforeseen circumstances caused an unavoidable delay in returning, the trip would still retain its temporary character, so long as you continued to intend to return to the U.S. as soon as the original purpose was completed. Attending a wedding in July but returning in October would raise a flag.
- Place of employment or actual home. At all times, you must have intended to return to the United States as a place of employment or business or as an actual home, not a vacation spot.
Officials generally consider the location of your ties, such as family, job or property, as the main aids in determining your intent. As the case of the Japanese woman above shows, she failed on all counts: her kids went to school in Japan, her job was in Japan, and she had a house in the U.S. but she never lived in it. Green card revoked.
Burden of Proof
This isn’t to say that you will be kicked out at the border immediately. While it is the green card holder who must initially prove that he or she is entitled to return to the U.S., once you have made a basic showing of compliance with the law, you cannot be denied entry. At that point, if the government still seeks to deprive you of entry, it assumes the burden of showing by clear, unequivocal and convincing evidence that you should be deprived of your status as a lawful permanent resident. This is where a court steps in.
In considering the evidence, the following outline may be of some help:
Strong indications of U.S. domicile:
- A home in the U.S.A.
- Employment in the U.S.A.
- Dependents living in the U.S.A.
- Filing tax returns in the U.S.A.
Medium indications of U.S. domicile:
- U.S. driver’s license.
- Bank account in the U.S.A.
- Mailing address and telephone number in the U.S.A.
- U.S. based credit cards.
- U.S. club memberships (Rotary, country club, etc.)
- Clothes, furniture, cars or boats in the U.S.
Weak evidence of U.S. domicile:
- Maintaining recreational or rental property in the U.S.
- Using a U.S. safety deposit box or Boxes R Us-type services.
- U.S. life insurance.
- U.S. subscriptions to magazines and the like.
- Directorships in U.S. companies
- Contracts showing you have a U.S. address.
If you’re a green card holder who wants to be outside the U.S. for an extended period of time, you must file for a reentry permit. This is a good idea for anyone who thinks they might be out of the country for more than six months. Reentry permits allow you to stay abroad for up to two years, but you have to say why you need the permit and you have to be in the U.S. when you file it. Note that you can’t renew a reentry permit. Once it expires, you’d better be back in the United States.
Precautions To Maintain Green Cards
Here are some of the best precautions one can take to maintain a green card:
- Don’t let your green card expire.
- Have a job in the U.S.A.
- File U.S. tax returns.
- Maintain a U.S. address, bank account, driver’s license and credit card account.
- Own property in the U.S.
- Register for selective service if you must.
- Keep dependents in the U.S.A. In other words, don’t send your spouse and kids back to the home country for work and school.
- Obtain a reentry permit if you’re going to come close to the six-month red line.