Preventing abandonment of your green card due to travel abroad

DEAR Attorney,

I am a permanent resident, and am planning to visit my loved ones in the Philippines during the holidays.  I am planning to leave this week and stay in the Philippines until after the New Years.  Will I face any problems coming back to the US after being outside the country for 60 days?  — E.K.

Dear E.K.,

A green card holder can travel outside the US and return with some limitations.  If a green card holder is outside the US for an extended period of time, he may be considered to have abandoned his permanent resident status.  Brief travel (such as your planned vacation) normally will not affect permanent resident status.  In your case, you should have no issues due to the length of your stay in the Philippines when you come back to the U.S.

However, abandonment of permanent resident status is a potential issue for green card holders who have to leave the US for an extended period of time (over 1 year) for one reason or another, such as to finish studies or work abroad.  In such situations, how can a person avoid losing his green card?

If a person plans to be outside the US for an extended period of time (over 1 year), an application for a reentry permit must be filed.  A reentry permit establishes that one did not intend to abandon his green card, and it allows one to apply for admission to the US after being outside the US for up to 2 years without having to obtain a returning resident visa.  Reentry permits are normally valid for 2 years from the date of issuance.  A permanent resident can re-apply for subsequent reentry permits.  Each subsequent reentry permit would be valid for 2 years.   

As aforementioned, if one is outside the US for an extended period of time without a reentry permit, he may be considered to have abandoned his green card.  If a permanent resident has been outside the US for more than 1 year and attempts to re-enter the US, he may be referred to an Immigration Judge to determine whether he has abandoned his permanent resident status.

An application for reentry permit should be filed at least 60 days prior to the contemplated extended trip outside the US.  While a person does not have to be present in the US at the time his reentry permit application is approved, it is important to file it with sufficient time prior to the trip to allow time to receive the biometrics notice after the application is filed, and have biometrics taken.  An applicant must provide his biometrics while in the US.  If an applicant leaves the US before biometrics are taken, the USCIS may deny the application.

What if a permanent resident has already left the US and either has 1) been outside the US for over 1 year or 2) been outside the US for over 2 years with an expired reentry permit?  The Department of State on its website advises to apply for a Returning Resident Visa.  To qualify for a Returning Resident Visa, you must show a valid reason why your stay abroad was extended, and that the reason for the extended stay was beyond your control or for which you were not responsible.  Another (perhaps better) option would be to re-enter the US–if US customs denies admission due to abandonment of your green card, you will have an opportunity to argue before an Immigration Judge here in the US that you did not abandon permanent resident status.

Obtaining a green card often is a difficult process.  For some, it takes many years.  It is accordingly important to take all steps necessary to maintain permanent resident status once attained.  If you plan to be away from the US for an extended period of time, or have been away from the US for an extended period of time without a reentry permit, or a reentry permit that has expired, it is recommended that you consult with an experienced attorney.

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.

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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010.  Tel:  (323) 639-0277.  Email: [email protected].