by Danielle Nelisse, Senior Immigration Attorney
Lawful Permanent Residents who stay outside of the U.S. for 6 months or more at a time are risking losing their I-551 Green Card (Lawful Permanent Residence) to airport immigration officials when they try to re-enter America, especially when they do it repeatedly. The airport officers are allowed to put green card holders in (locked) secondary inspection at the airport upon their re-entry and ask many questions about why they left the USA so much. Many of the airport immigration officers don’t like it when green card holders even get close to the 180 day mark and/or when they take repeated long trips. They feel that the green card is for people who want to live in the USA full time.
Traveling Abroad for Too Long
In addition, Lawful Permanent Residents who have been outside the U.S. more than 1 year cannot use their unexpired green card to re-enter unless they first go to the U.S. Consulate and get an SB-1 Returning Resident Visa and convince them that their stay abroad was beyond their control.
The easiest way to calculate how many days you have been outside the USA is to enter your entry/exit dates on a date calculator such as www.timeanddate.com.
However, if a loved one is very ill and needs help, sometimes there is no way to avoid being outside the U.S. for an extended period of time. One way to help prevent the loss of Lawful Permanent Resident (LPR) status due to an extended trip abroad (whether it is for 6-12 months or for longer than 12 months) is to apply for a special two year I-131 ”Re-Entry Permit” before leaving the U.S. There are many reports (read the 500+ comments below!) of green card holders being questioned in a locked room at the airport and warned to get a re-entry permit after two 5 month trips abroad. Please be warned – the airport officers may question a green card holder’s intent to live in the USA permanently whether they were gone longer than 6 months or not.
What about the “Return Every 6 Months” Rule? There is No “Return Every 6 Months Rule.
There are many rumors regarding travel outside the U.S. after obtaining permanent residence. Once a foreign national is a permanent resident, the green card (Form I-551) is the correct document re-entering the USA 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 to the USA and never having an absence of more than one year. This is not the case.
The USCIS Customer Service Representative Did Not Tell Me the Second Part of the 1 Year Rule
If you call the USCIS and ask how long a green card holder may go abroad, the customer service representatives at the USCIS 800 number will probably tell you only one of the many rules about how long a permanent resident holder can be abroad. They will probably tell you that if a green card holder goes abroad for less than one year it is allowed. Technically that is true. One of the rules is that the I-551 green card is no longer valid for re-entry (even though unexpired) after 1 year abroad.
Unfortunately, the USCIS 800 number customer service representatives do not give you the complete answer which would include the “intent to reside in the USA” rule.
In other words, the “one year” rule has 2 requirements. The green card is the appropriate document for re-entry only if (a) the absence from the U.S. is less than one year AND THE SECOND REQUIREMENT IS THAT (b) the person is returning to an un-relinquished, lawful permanent residence in the USA after a temporary absence.
The mere return to the U.S. every 6 months does not “revalidate” the green card. The airport immigration officers can still make a determination that the green card should be surrendered when the permanent resident has been living outside the USA for too long in general, even though the green card holder comes back to the USA every 4 or 5 or 6 or 7 months . . . because the airport immigration officer will eventually figure out that the green card holder is really living and working abroad and just coming to the USA occasionally.
Are You Saying That The 6 Month Rule No Longer Exists? Is it Now a 1 Month Rule?
If you are asking about a ”6 month rule” with regard to green card holders traveling . . . there never was a 6 month rule. Green card holders were just getting away with visiting the USA twice a year because the airport officers did not have the computer resources to keep track of their traveling. But now they have great computer data bases and the airlines are required to report their passenger lists.
The real rule is that green card holders are required to live in the USA “the majority” of each year, thereby indicating their “intent” to live in the USA permanently. So there is no “1 month” rule either. For example, a person who travels outside the USA for 3 months 1 x may be questioned less upon re-entry than a person who travels for 2 weeks 4 x a year because their “intent” to live in the USA appears to be more clear. Bottom line, the decision whether to (a) question green card holders upon re-entry (b) issue a written warning (stamp in the passport or words put in the computer) or (c) try to take away the green card due to excessive travel outside the USA is all in the american airport officers’ hands.
Where Can I Find a Complete Listing of the Rules of Travel for LPR’s?
The customer service representatives are not immigration attorneys and are reading prepared answers to common questions off of a card. However, there are many rules about how long a permanent resident can be outside the USA. It would be too long and too complex for the customer service representative to read them all. Immigration rules are not contained in one book – they written in many places: USCIS/INS regulations, USCIS/INS policies, immigration judges opinions (at 4+ different court levels), and in CBP policies. While it seems illogical, some of the immigration travel abroad rules that appear to only apply to those who desire American citizenship also apply to green card holders who travel (see next section).
Sorry, but there is no time or space to list all of the rules here, many of which overlap with each other (and some contradict each other) on this blog article. A person could go to a local (free) law library to find the rules contained in law books, do extensive internet research, pay for an immigration law book (about $400 for “Kurzban’s Immigration Law Sourcebook” ), or pay an immigration attorney to write a legal brief to list the rules for you. If it was easy to list all the immigration rules about green card holders traveling abroad I would do it here. Another problem is that the rules often change.
American Airport Immigration Officers Expect to See “Intent to Reside in USA” After an Absence of 6-12 Months or Even Less
Without an approved Re-Entry Permit, green card holders are required to spend at least the majority of the year in the USA to keep their green card. Period. The time spent in the USA each year does not have to be continuous. While you will not find this exact wording in an immigration law, the airport immigration officers use the (correct) logic that the majority of a 12 month year is generally considered to be 7 months per year. They look at your overall history in their computers. The ports of entry (airports and land) and airlines (passenger lists) report your travel activities visa computer.
The reason the airport immigration officers pay attention to whether someone has been abroad more than 6 months is that there is an immigration rule that states that if a person leaves the U.S. for a trip lasting more than 6 months, they “disrupt their continuous residence.” To prove that an applicant did not disrupt the “continuity of residence,” the Airport Immigration Officer is allowed to interrogate the traveler and ask for documentary evidence of their “ties to America” (listed below).
However, the trip outside the USA does not have to be more than 6 months to trigger questioning in secondary inspection. Some airport immigration officers don’t even like 3-5 month trips abroad – they feel you are not inside America enough to keep your green card and so they have 100% authority to question your intent to live in America permanently as much as they desire. As they say, the best defense is a strong offense – when re-entering America after trips longer than 2-3 months, always carry a folder of your “ties to America” (listed below).
Inside Tips About Preparing I-131 Re-Entry Permits
I-131 “Re-Entry Permits” appear to be deceptively simple to prepare; however, upon reading the I-131 instructions carefully, many green card holders decide to hire an experienced American immigration attorney to prepare the I-131 application for them because the stakes are so high they do not want to risk a denial.
Even though airport officials sometimes create the impression that they would not ask so many questions if an LPR had an approved Re-Entry Permit, this is not always the case. Often times my clients have reported that they have been aggressively questioned by airport officials during inspection even though they have an approved Re-Entry Permit.
There have been numerous instances of LPRs being found to have abandoned their LPR status even though they attempted re-entry on a Re-Entry Permit because they did not also show the Officer copies of the documents listed below proving their intent to return to America after an extended trip abroad.
The documents listed below are often referenced to as “TIES TO AMERICA” and they provide a paper trail for the officer to determine whether a person was living in the USA and intended to come back to the USA. Most people think that merely filing an American tax return and maintaining an American bank account constitutes sufficient “TIES TO AMERICA” and that simply is not the case.
Review of some of the Re-Entry Permit Rules:
- The I-131 Application for Re-Entry Permit must be submitted while you are still in the U.S.;
- You must remain in the U.S. until your biometrics (fingerprints) are taken or the I-131 Application for Re-Entry Permit will be considered “abandoned”
As we have discussed, possession of an approved Re-Entry Permit upon your return to America DOES NOT prevent CBP Officers at the airport from inquiring to see whether you have abandoned your U.S. residency. It does however prevent the Officer from relying solely on the duration of your absence as a basis to determine abandonment of LPR status.
Prepare I-131 Re-Entry Paperwork Before Traveling Abroad
The Re-Entry Permit is only one piece (an important one) of your intent to return to the United States. Merely returning to the U.S. once a year for a few days does not “automatically revalidate” the green card if you are actually living abroad.
LPR status may be revoked if person works abroad; and, an LPR must show a “continuous uninterrupted intention to return” to the United States during the entirety of her visit abroad.
Type of Documents to Bring to the American Airport to Showing Intent to Return to America After an Extended Trip Abroad (even with Re-Entry Permit!) includes proof of:
- Round trip ticket;
- Sold or transferred property or business abroad;
- Purchased a car in America;
- Had car insurance or medical insurance or life insurance in America;
- Purchased property or a business in America;
- Maintained a Bank Account in America;
- Filed Tax Returns in America every year that had green card;
- Maintained State I.D. or State Driver’s License in America;
- Paperwork that proves you have a Doctor in America (saw a doctor before leaving and kept the receipt);
- Got a job or volunteer position in America before leaving (even for a few weeks);
- Learned the English language even while abroad;
- Had accounts in America like Netflix, Blockbuster, Library Card;
- Leased an apartment in the U.S.;
- Utility bill for apartment in U.S.;
- Enrolled in an American online training course in English language or business while abroad;
- Kept a file of ill relative’s medical progress or decline (doctor’s reports, prescriptions, etc.), translated into English; and,
- Established a Facebook account based in America and visited it weekly while abroad using only the English language.
Things that Show Intent NOT to Return to America (even with Re-Entry Permit!):
- Worked or attended school abroad.
- Got married abroad.
- Purchased a business or property abroad.
- Purchased a car abroad.
With an approved 2 year Re-Entry Permit, a green card holder is allowed to be outside the USA for up to 2 years. However, before leaving the USA they should establish enough “ties to America” evidence because they will need documentary evidence of their ongoing “ties to America” IN ADDITION to their approved Re-Entry Permit to submit at the American airport to get back into America. If they wish to apply for a second Re-Entry Permit, the first one must expire before submitting the second I-131 request.
If Re-Entry Permit is Approved
If a Re-Entry Permit is approved, the applicant and their immigration attorney are usually notified through the mail at their home address in America that it is ready to be picked up at the U.S. Consulate in their country abroad. A separate permit is needed for each family member.
If Re-Entry Permit is Denied
If an application for a Re-Entry Permit is denied, the applicant is usually notified through the mail at their home address in America. If an application for a Re-Entry Permit is denied, it is prudent to return to the U.S. as soon as possible.
A denial of a Re-Entry Permit does not mean that LPR status is denied. But without an approved Re-Entry Permit, an LPR only has one year to use their unexpired I-551 Card (green card) and their valid passport to seek re-entry to the U.S., so it is best to return sooner rather than later.
If it is unavoidable for an LPR to return to the USA before being abroad for 365 days, the only option (other then surrendering the green card and starting over again) is to apply for an SB-1 RETURNING RESIDENT VISA at a U.S. Consulate to try and preserve LPR status.
Why Having an Approved Re-Entry Permit Does Not Help with Naturalization (U.S. Citizenship):
Keeping your LPR status and preserving eligibility for naturalization are two very different things with different requirements. Some of the residence in the USA requirements for naturalization are:
- Applicant must have a permanent address in the U.S. for 5 years; AND,
- Applicant must have been physically present in the U.S. for periods totaling one half of the 5 years (2.5 years or 912.50 days).
However, even when an applicant for naturalization has been in the U.S. for one half of the five years, if any of their trips outside the U.S. were for 6-12 continuous months, they are presumed to have disrupted the “continuity of 5 years of residence.” The good news is that this presumption can be challenged if the applicant can present the documents listed above that prove intent to return to America. It is always advisable to hire an immigration attorney for a citizenship case where there was a disruption of the continuity of residence.
Back in the USA: American Fireworks
Therefore, the more evidence a naturalization applicant has of their intent to return to America, the better chance they will have of overcoming the presumption of disruption of residence.
Even if an LPR has an approved Re-Entry Permit, when an applicant for naturalization remains away from America for 12 continuous months or more (365 days or more) they automatically will be found to have disrupted the “continuity of 5 years of residence” for citizenship purposes.
The immigration officers have no discretion when it comes to 12 months or more absence – in other words, no amount of documents can fix the problem of disrupting the “continuity of 5 years of residence” after a 12 month absence. However, there is a 4 Years and 1 Day Rule worth considering in this situation
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