An adjustment of status (AOS) refers to the process by which an alien physically in the United States files a Form I-485 petition with U.S. Citizenship and Immigration Services (USCIS) to adjust his or her status from nonimmigrant to immigrant, i.e. permanent resident status. Aliens who do not physically reside in the U.S. are ineligible to petition for an adjustment. Instead, they must undergo consular processing at a U.S. embassy or consulate in their home country or country of foreign residence.
Whether through an AOS or consular processing, successfully becoming a legal permanent resident (LPR) of the U.S. is an accomplishment that makes the complex, lengthy process worthwhile. But new permanent residents cannot become complacent after receiving their green cards: LPR status is a revocable privilege that has to be maintained. Merely being awarded a green card does not mean it cannot be taken back.
The surest ways permanent residents can lose their status is by committing an egregious crime or otherwise violating immigration laws that make them deportable; or by forgoing their permanent residency. This latter reason for rescinding LPR status is called “abandonment.” In this article, we focus on issues of abandonment, delving into the various steps LPRs must take to maintain their status, while looking at the causes for a determination that an LPR has abandoned his status.
Intent and Abandonment
First and foremost, permanent residents are expected to demonstrate the intent to remain in the U.S. as LPRs. Having such intent may seem too obvious—after all, why would an alien go through the extensive process of becoming an LPR only not to desire, in the end, to maintain permanent resident status?
But many LPRs mistakenly believe they can finally travel abroad freely after getting their green cards, perhaps even relocate back to their foreign countries, and will nonetheless be able to easily re-enter the U.S. as permanent residents. While a lengthy period of time spent abroad does not automatically lead to the revocation of LPR status, extended absences from the U.S. can trigger USCIS to investigate whether or not an LPR has the intent to remain in the country. Suspecting that an LPR does not have the intent to maintain permanent residence in the U.S. is a key factor in USCIS determining that said individual has abandoned his permanent residency.
To ascertain whether or not an LPR has abandoned permanent residency, USCIS considers the following:
Ownership of property
Mortgage and other loans
(We explore each of these items in greater depth below.)
No single factor listed above is sufficient to determine an LPR has abandoned her status. Rather, USCIS scrutinizes all relevant factors holistically, looking at the totality of circumstances specific to a permanent resident whose actions have triggered an inquiry.
Generally speaking, an absence from the United States lasting a year or less is not necessarily problematic for a permanent resident, and an LPR who has been abroad for such duration of time can generally re-enter the U.S. using his green card. In contrast, to USCIS, an absence from the U.S. lasting more than a year indicates possible abandonment of U.S. permanent residency. Accordingly, LPRs who have been out of the country for more than a year must obtain re-entry permits or special immigrant visas in order to come back into the U.S. (More information on re-entry permits appears below.)
Some green card holders internalize the above information to mean that they can maintain their LPR status with ease if they simply return to the United States once a year and stay for a few weeks. This is an erroneous—and dangerous—assumption to make. In fact, USCIS considers even more than one return trip to and short stay in the U.S. per year to be a possible indication of abandonment, as such brief visits may demonstrate an LPR lacks sufficient ties in the country, or that her residence in the United States is not her permanent one. While it is the case that LPRs can possess multiple residences in the U.S. and abroad, they must nonetheless establish that the United States is their permanent residence.
Ensuring Continuity of LPR Status
LPRs can take concrete steps to ensure that, even if they are planning to be abroad for a considerable amount of time, there is no reason for USCIS to suspect abandonment. None of these steps is burdensome or difficult to complete. In fact, most are merely the routine activities of living in the U.S.
Filing tax returns
Green card holders are required to file federal tax returns annually with the Internal Revenue Service (IRS). In their returns, LPRs must designate their filing category as “U.S. Resident Alien.” Choosing to file tax returns as a non-resident alien, for whatever reason, points to possible abandonment.
Further, LPRs must report their income and assets not just from the U.S., but also from around the world. The IRS is empowered to fine, prosecute, and even imprison resident aliens who fail to report their worldwide income and assets.
For more detailed information on taxation and reporting obligations as an LPR, refer to our article here.
Maintaining strong family ties in the U.S.
Oftentimes, an LPR is either employed abroad or required to travel overseas for a considerable amount of time for work. In such cases, having immediate family members—a spouse, any children, or parents—remain in the U.S. provides compelling evidence of an LPR’s intent to maintain U.S. permanent residency.
In fact, employment abroad is the most common reason LPRs are not physically present in the United States for extended periods of time. In addition to maintaining strong family ties in the U.S. (and particularly if an LPR does not have such ties), a written statement from an employer or a contract specifying the length of overseas employment are persuasive pieces of evidence to demonstrate an LPR’s intent to retain U.S. permanent residency. An employer’s statement indicating that his LPR employee will be transferred back to the United States within a specified time frame is especially convincing.
Other substantial ties to the U.S.
Even if an LPR has a defined term for his overseas employment and a home with a spouse and children in the U.S., USCIS may continue to suspect possible abandonment. It is therefore advisable that all LPRs maintain as many strong ties to the U.S. as possible. Listed below are several examples of such ties that help demonstrate an LPR’s intent to maintain U.S. permanent residency.
-LPRs should have a U.S. mailing address at which they receive mail. The address can be the LPR’s own property, or the home of a relative or friend.
-LPRs should ensure their driver’s license is valid (and if it’s not valid, renew it) over the duration of time they spend abroad.
-Prior to departing from the U.S., LPRs should open a bank account at a U.S. bank if they do not already have one. During their time abroad, they should ensure the account stays open and use it on occasion. A monthly bank statement showing consistent activity is persuasive evidence of maintaining ties to the U.S.
-Before departing, LPRs should similarly apply for and obtain a credit card issued by a U.S. bank if they do not already possess one. Consistent use of the credit line helps establish an LPR’s ties to the U.S.
-During their time abroad, LPRs should ensure they are keeping current with monthly mortgage or loan (e.g., for a car) payments.
-If an LPR is a member of a professional association or established social group in the U.S., he should maintain his relationship with these groups; examples of evidence of maintaining such ties to the U.S. include paying dues or membership fees on time, receiving publications, and attending meetings.
Importance of Documentation
If a permanent resident does not have a credible reason to be abroad for prolonged periods of time—like a work situation verified by an employer, as noted above—or lacks strong family or other ties to the United States, then said LPR must be prepared to provide compelling reasons with appropriate documentation to justify his absence from the U.S. This situation frequently arises when an alien has only just become a permanent resident and consequently has not had the time needed to establish firm roots in the U.S.
Plausible justifications for a prolonged absence from the U.S. include, but are not limited to, the following:
Regardless of the circumstances that apply, they must be well-documented.
Returning to the U.S.
As noted above, if an LPR is abroad for more than a year, he runs the risk of being denied admission to the U.S. on the grounds that he has abandoned his permanent residency. A re-entry permit was designed to solve this problem.
When lawful or conditional permanent residents plan to be outside the U.S. for more than one year but less than two years, they should apply for a re-entry permit, which will allow them to re-enter the country. Permanent residents should note the time frame: re-entry permits are not intended for LPRs absent from the United States for longer than two years.
Re-entry permits can also serve as passports for permanent residents of the U.S. who do not already possess a passport or cannot obtain one from their country of nationality.
For more information on re-entry permits, click here.
Preserving Residence for Naturalization
A common misconception among many LPRs is that they are required to be physically present in the U.S. for at least half of every year after they obtain permanent residency in order to keep their status. This is incorrect. As discussed above, prolonged absences, provided they are justifiable, do not necessarily lead to abandonment of an LPR’s permanent resident status.
In terms of becoming a naturalized citizen of the United States, however, such absences can break the continuity of an LPR’s residence in the U.S. A prerequisite to naturalization is residence in the United States for a continuous period of five years after obtaining permanent resident status and before applying for naturalization. (If an alien is married to a U.S. citizen, the requisite period of continuity of residence is shortened to three years after obtaining LPR status.) In addition, permanent residents seeking to be naturalized must physically reside in the U.S. for at least half the period of continuous residence.
Some individuals are exempted from the above requirements. These people include spouses of U.S. citizens who are serving in the military or who are required to work for a U.S. employer overseas.
For more information on naturalization, click here.
Our Firm is Here to Help
Given the often complicated process and the high stakes—a chance at permanent residency in the United States—involved, it’s imperative that aliens seeking adjustment consult with an experienced immigration attorney. To begin your potential AOS case, contact Zhang & Associates for an initial free consultation by clicking here.
For more detailed information on adjustment of status, including related issues, refer to the following links:
General AOS Topics
Further Reading on AOS