An Adjustment of Status (AOS) is an application filed by an alien who is physically in the United States who wants to adjust his or her non-immigrant status to immigrant status, i.e. permanent resident status, without having to return to their home country, by filing a Form I-1485. An alien who is outside of the United States, however, may not apply for an adjustment of status. Instead, these individuals must go through Consular Processing at a U.S. Consulate abroad.In another word, if the alien does not reside in the United States; he/she cannot apply for adjustment of status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead.
After an alien’s I-485 petition has been approved, or after they have successfully gone through Consular Processing, it is the alien’s responsibility to ensure that they maintain Legal Permanent Resident status.
Legal Permanent Resident (LPR) status is not a legal right but a revocable privilege, which means that an alien may lose his/her LPR status even after he/she has already received a Green Card. Although he/she is an LPR, he/she remains an "alien." It is therefore possible for him/her to lose LPR status under certain extreme circumstances.
Loss of LPR status occurs when an LPR abandons his/her permanent residence in the U.S., or when he/she becomes deportable for committing a serious crime or violating immigration laws and regulations. This article focuses on the topic of abandonment, i.e., failing to maintain permanent residence in the U.S.
Many LPRs relax when they obtain a Green Card, believing that they can finally travel freely back and forth or even relocate to their home countries, and that they can always reenter the U.S. using their Green Cards as a travel document. While a lengthy absence from the U.S. does not automatically cancel the LPR status of an alien, an extended absence may trigger the inquiry of the USCIS as to the alien's intention to remain a permanent resident of the U.S.
The Factors Indicating Intent
The intent of an LPR to remain a permanent residence in the U.S. is a key factor in the USCIS's determination of whether the LPR has abandoned his/her permanent residence in the U.S. However, a mere oral or written statement of intent to remain a U.S. resident to the USCIS is not sufficient. Apart from the length of the absence from the U.S., the USCIS will look to many objective facts that reflect the LPR's intent. The major factors that are considered in determining the LPR's intent include:
The length of the LPR's absence from the U.S.;
The purpose for the LPR's departure;
The existence of facts evidencing a fixed termination date for the stay abroad;
The continued filing of U.S. tax returns with the IRS in a resident status;
The location of the LPR's close family members;
The location and nature of the LPR's employment abroad;
The maintenance of other ties with the U.S. including mailing address, bank account, ownership of property, driver's license, club membership(s), mortgage, credit card, etc.
The Totality Test to Determine the Alien's Intent
No single factor in the above list is controlling with regard to the alien's intent to maintain legal permanent resident status in the U.S. The USCIS officers will analyze all relevant factors and look to the "totality of the circumstances" to decide.
As a general rule, if an LPR leaves the U.S. for one year or less, he/she can use a Green Card as a reentry document. By contrast, when an alien is absent from the U.S. for more than one year, he/she may have a difficult time reentering the country because the USCIS takes the position that an absence of longer than one year in duration indicates a possible abandonment of U.S. residency. LPR’s who have been out of the U.S. for more than one year will need to obtain reentry permits or special immigrant visas.
Many Green Card holders accordingly believe that in order to keep their LPR status, they can simply return to the U.S. once a year and stay for several weeks; this is an error. Merely returning to the U.S. and using the Green Card once a year has little bearing on the question of whether the LPR has maintained the intention to remain a permanent resident of the U.S. In fact, although some aliens return to the U.S. more often than once a year, they lose their LPR status because they lack sufficient ties with the U.S. indicating that they consider the U.S. to be their country of permanent residence. An LPR alien may have multiple residences, but he/she must show that the U.S. residence is the permanent one.
Therefore, all LPR’s who wish to keep their Green Cards should take the steps necessary to establish sufficient facts evidencing that they are maintaining strong ties with the U.S. and retaining the U.S. as their permanent home.
Necessary Steps to Assure Continuity of LPR Status
An LPR who will travel abroad for a considerable length of time should take certain steps to assure that his/her permanent resident status will not be lost.
Under all circumstances, an LPR must file tax returns as a U.S. Resident Alien annually with the IRS. To properly file such a tax return, the LPR must claim his/her worldwide income in the return. Filing a tax return as a resident alien does not necessarily mean that the alien must actually pay income taxes if he/she is employed overseas, because treaties and foreign tax credits may minimize the tax amount actually paid to the IRS. Filing tax returns as a non-resident alien will give an assumption that the alien has abandoned his/her U.S. permanent residency.
If an LPR is employed abroad or has to travel overseas for a considerable length of time, it is preferable for his/her immediate family members, including any spouse, children, and parents, to remain in the U.S. Documentation of strong family ties to the U.S. shows the LPR's intention to keep his permanent resident status.
Employment abroad is the most common reason that LPRs are absent from the U.S. for an extended period. A written statement from the employer, or an employment contract identifying the length and term of the overseas job, will help provide objective facts for the analysis with regard to the LPR's intention to retain his/her permanent resident status. In addition, if possible, a statement that the LPR will be transferred back to the U.S. after the completion of the overseas employment will be very helpful.
Even if an LPR is engaged in overseas employment and/or has close family members in the U.S., it is advisable to maintain as many ties with the U.S. as possible. If an LPR is not engaged in overseas employment and has no family members in the U.S., he/she must be able to establish other strong ties. The ties with the U.S. which evidence that an alien retains his/her U.S. permanent residence are listed as follows:
An LPR should maintain a mailing address in the U.S. to receive mail. The LPR can designate his/her mailing address as the home of a relative or friend, or at the place where the LPR owns real property.
An LPR should maintain a valid driver's license throughout the period when he/she is absent from the U.S.
Before an LPR departs from the U.S., he/she should open a bank account with a U.S. bank, and leave it open and use it during the stay abroad. An active monthly bank statement is very helpful to document strong ties with the U.S.
Before an LPR departs from the U.S., he/she should apply for and obtain a credit card issued by a U.S. bank. Consistent use of the credit account will help to establish that the LPR has strong ties with the U.S.
While an LPR is staying outside the U.S.; he/she should keep up with payments on any house mortgage or car loan, and retain all records of payment.
If an LPR is a member of a professional association in the U.S., he/she should keep ties with the association, which includes paying dues or fees on time, receiving journals and/or attending annual meetings.
If an LPR is not employed abroad and no family members are present in the U.S., the LPR should be prepared to give good reasons with strong documentation for a prolonged absence, especially when the LPR has not established other strong ties with the U.S. This situation often arises when an alien becomes an LPR and before he/she establishes firm roots in the U.S. Good reasons for being absent from the U.S. include but are not limited to: taking care of a sick family member in the home country, taking care of family business abroad, liquidating overseas assets, administering the estate of a deceased relative, etc. Regardless of the circumstances, these reasons must be well documented.
Lawful permanent residents or conditional permanent residents who wish to remain outside the U.S. for more than one year, but less than two years, may apply for a re-entry permit. A Reentry Permit allows a permanent resident of the U.S. to reenter the U.S. after traveling abroad for longer than one year but less than two years. As discussed before, if an LPR travels abroad for a period longer than one year, he/she faces a risk of denial of admission into the U.S. on the ground that he/she has abandoned his/her permanent resident status. A Re-entry Permit is designed to solve this problem.
In addition, a Reentry Permit serves as a passport for a legal permanent resident of the U.S. if he/she has no passport and cannot obtain one from the country of his/her nationality.
For more information about Reentry Permits, please click here.
Some LPRs believe that to keep their legal permanent resident status they must be physically present in the U.S. for at least half of every year following from the time that they obtain permanent residency forward. This is not correct. A prolonged absence from the U.S. will break the continuity of an LPR's residence in the U.S. for naturalization purposes, while it may not affect the LPR's ability to return to the U.S. as a permanent resident.
In order to become a naturalized citizen of the U.S., an LPR must reside in the U.S. for a continuous period of five years after lawful admission to the U.S. as a permanent resident and prior to application for naturalization. If an alien is married to a U.S. citizen, he/she must reside in the U.S. for a continuous period of three years following lawful admission to the U.S. as a permanent resident and prior to application for naturalization. In addition, the LPR must physically reside in the U.S. for at least half of the period required for continuous residence. However, some aliens are exempted from these requirements, such as the spouses of U.S. citizens who are U.S. military personnel or who have overseas employment with U.S. employers.
For more information on how to apply for an Adjustment of Status, please click on one of the following topics below: