Maintaining Permanent Residency
Despite the name “green card” and “lawful permanent resident status” the green card is not really “green”, and the status is not necessarily “permanent”. There are ways in which a person can lose permanent residence status, such as committing a violent crime or abandoning permanent residence status.
A person may “abandon” permanent residence status, despite their intent to not do so, by spending time outside the U.S. The general rule is that 12 consecutive months outside the United States will result in loss of permanent residence status. However, that is not to say that living outside the U.S. and simply making just one short trip into the U.S. every 12 months, year after year, can maintain the permanent resident status. Prolonged times outside the U.S. – either 12 months consecutively or many years with just brief trips into the U.S. annually – can jeopardize the permanent resident status.
Fortunately, there is a way to avoid abandonment of status during a prolonged absence outside the U.S.: file for a re-entry permit before leaving for a long duration. An application for re-entry permit is filed with USCIS before departing the U.S.; it is a method to inform the U.S. of the plan to be outside the U.S. for more than a year (up to 2 years consecutively) while still intending to maintain permanent residence. The application must be filed BEFORE leaving the U.S. and the process requires biometrics, which means the person needs to either remain in the U.S. until the biometrics is completed or return to the U.S. for the biometrics appointment. However, the person does not have to remain in the U.S. for the full processing of the re-entry permit since the re-entry permit can be mailed to the permanent resident internationally after it is approved. In sum, the person has to be in the U.S. when the application for the re-entry permit is filed but does not have to be in the U.S. for the USCIS to approve the re-entry permit.
If permanent residence is abandoned, the applicant would need to reacquire a visa if he/she desires to return to the U.S. as a permanent resident. That process may involve obtaining a returning resident visa at a U.S. Consulate abroad, with evidence of the applicant’s extended stay outside the U.S. was due to circumstances beyond his/her control and that he/she maintains strong ties to the U.S. If this is not successful, the person would need to do the entire permanent residence process from the beginning, which may not be possible if the person no longer has a job or family relationship to form the basis for permanent residence.
It is important to understand the difference between “maintaining permanent residence” and “preserving continuity of residence”. The former pertains to keeping the green card while the latter refers to the eligibility for filing for U.S. citizenship.
While obtaining a re-entry permit allows one to maintain permanent residence, it does not help with the eligibility for citizenship. For naturalization purposes, a period of six consecutive months outside the U.S. can “break” the continuity of residence and result in a “re-start” of the eligibility period for naturalization, which is normally a 5-year period but is reduced to 3 years if the lawful permanent resident is married to a U.S. citizen.
PRESERVING CONTINUITY OF RESIDENCE FOR NATURALIZATION PURPOSES:
A lawful permanent resident (i.e., green card holder) may become eligible to apply for U.S. citizenship 5 years after receiving the green card, or 3 years if the person is a married to a U.S. citizen. However, part of being eligible for citizenship is “continuity of residence” and “physical presence” during the 5-year (or 3-year) period before applying for permanent resident. If a permanent resident does not maintain both continuity of residence and physical presence, then the person has to wait longer…until such time the person does meet the required 5 years (or 3 years) of continuity of residence and physical presence.
- Continuity of residence in the US – The general rule is that a permanent resident can NOT be out of the US more than 12 months consecutively and even an absence of more than 6 months consecutively can break the continuity of residence UNLESS the person received approval of an application to preserve continuity of residence before leaving the US. There are very limited ways to qualify for an application to preserve continuity of residence, thus, most people do not qualify. As such, the vast majority of lawful permanent residents need to ensure they are NEVER outside the U.S. for 6 consecutive months after obtaining permanent residence.
- Physical presence in the US – As part of the naturalization application, a person must show that he/she has been “physically present” in the U.S. for more than half of the 5-year (or 3 year, if married to a U.S. citizen) period before applying for naturalization. Thus, at the time of filing for naturalization, there is a “look-back” period for the previous 5 years to determine if the person has been physically present in the US more than 2 ½ of those 5 years.