Recently there appeared in the newspaper a story about a woman from the Philippines who lost her permanent residence status because she had spent much of the last nine years in the Philippines caring foraging mother and father. Each year from 1976 w 1985 she returned to the U.S. and stayed for one or two months believing that her brief return would preserve her immigration status. On her last return she was stopped at the airport by the INS and placed in deportation. The INS maintained that she had abandoned her permanent residence. Only after four years of litigation did the INS finally allow her to remain in the US through the humanitarian parole procedure but not as a permanent resident
While this case ended favorably for the foreign national many permanent residents may be in danger of losing their status because they Leave the U.S. for an extended period without having taken steps to show that they wish to remain permanent resident Contrary to popular belief and as the story above shows simply returning to the U.S. once a year may be insufficient to show an intention to remain a permanent resident. Note that a separate issue is maintaining “continuity of residence” for citizenship purposes. A later article will discuss that issue. This article discusses retaining permanent residence status.
The issue of abandonment or retention of permanent residence is really a question of intention. And one’s intention can be shown by actions taken by the departing resident. An important indication of this intention is the filing of an income tax return as a resident. Failure to so file when required can be viewed as evidence of abandonment of permanent residence. Maintenance of other ties with the U.S. such as the ownership of property (ie. a house) or having and using bank accounts and credits cards can help to show that a person intends to continue to have the U.S. be his or her permanent home. Similarly renewing a U.S driver’s license or renting ones house rather than selling it during a temporary absence abroad may show such intention.
The duration of absence from the U.S.S and the purpose of the departure also are important indicators of intent. A trip abroad for an indefinite period of time in order to work in a foreign country may show intent to abandon permanent residence. On the other hand an absence for a definite period in order to accept temporary work abroad may show the opposite intent. If employed temporary abroad the resident should try to get a written employment contract stating the length of the employment and specifically stating that the employment is temporary (or that a transfer back to the US. will take place at a definite time in the near future). In general a permanent resident wishing to retain that status should take care to documents both the reason for the temporary absence abroad and the plan to return to his or her permanent home in the U.S.
A permanent resident who plans to be out of the country for an extended period may apply for and receive from the INS a reentry permit. There-entry permit makes it possible for the resident to return to the U.S without securing visa from the U.S. Embassy or Consulate However while it is useful for reentry the permit does not guarantee re-entry and it does not necessarily indicate an intention to remain a permanent resident. For absences of less than a year the green card should suffice to secure re-entry as long as there has been no abandonment of permanent residence.
This article is designed to help the reader to understand the immigration system and 10 recognize legal problems No general solution to specific legal problems is intended. Because each case involves different facts the reader is cautioned to consult a lawyer and to refrain from attempting to solve individual problems based on the information presented here.
Mr. Ontins is an attorney in Washington D.C concentrating on immigration and nationality law. His office is located at 1601 Connecticut Avenue N.W. Suite. 300 Washington D.C. 20009 telephone (202) 234-8906.
“J Bradley Ortins Esquire.
Article extracted from this publication >> January 31, 1992
