Maintenance of Lawful Permanent Residence and the Requirement of Continuous Residence for Naturalization—What's the Difference?

Status as a lawful permanent resident (LPR) of the United States is a hard-won prize requiring, in many cases, years of work and vast amounts of patience. So how does an LPR avoid abandoning his permanent residence if he needs to leave the United States for an extended period? Say, for example, his employer assigns him to work for an overseas affiliate. Assuming the LPR successfully maintains permanent residence throughout the five-year qualifying period for naturalization, has he also maintained five years of continuous residence?[1] Lawful permanent residence and the five years of continuous residence required for naturalization are different concepts. One can maintain lawful permanent residence yet have a break in continuous residence that will significantly delay eligibility for naturalization.

Maintenance of Lawful Permanent Residence

An LPR who is contemplating an extended absence from the United States needs to understand that retention of permanent resident status is not merely an examination of how much time he spends outside of the country. While there are some bright-line rules involving time out of the United States, these should not be confused with the issue of whether an individual may be found to have abandoned permanent residence. For example, an LPR may use his permanent resident card ("green card") to return to the United States following an absence that has not exceeded one year. While the green card may be a valid entry document for return following an absence of a year, this does not necessarily mean that the individual has retained his status as a permanent resident. Maintenance of permanent residence is a more complex matter involving inquiries into the individual's intent, elements of time and additional surrounding circumstances. Guidance on maintaining permanent residence can be found by examining case law on its abandonment.

Federal courts that have discussed the issue of abandonment of permanent residence look to whether the individual is returning to the United States from a "temporary visit abroad." The Ninth Circuit has defined this visit as one that is "(a)…for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time." If the length of the visit is "contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a ‘temporary visit abroad' only if the alien has a continuous, uninterrupted intention to return to the United States during the visit." See Singh v. Reno, 113 F.3d 1512, 1514 (9^th Cir. 1997). Factors that have been used to determine whether an alien harbored a continuous, uninterrupted intention to return in addition to the alien's testimony include the alien's family ties, property holdings and business affiliations within the United States; the duration of the alien's residence in the United States; and the alien's family, property and business ties in the foreign country. See Chavez-Ramirez v. INS, 792 F.3d 932, 937 (9^th Cir. 1985). The Second Circuit has noted that if the visit relies on an event that has a reasonable possibility of occurring within a short period of time "…the intention of the visitor must still be to return within a period relatively short, fixed by some early event." See Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002). The Sixth Circuit has stated that the "‘ totality of the alien's circumstances' must be taken into account in addition to the usual factors such as the alien's family, property, and job, and …the length of the alien's trip(s) abroad." See Hana v. Gonzalez, 400 F.3d 472 (6^th Cir. 2005).

Given the plethora of information courts and the Department of Homeland Security (DHS) will review to determine whether an individual has abandoned permanent residence, what steps should an LPR take to maintain residence when assigned overseas or when otherwise contemplating an extended absence? There are numerous actions that will assist in a finding of retention of permanent resident status; however, an LPR must bear in mind that retention, if the absence or absences are extensive, cannot be guaranteed. Further, an LPR should understand that some actions are employer dependent and may simply not be practical in a given situation. This does not mean that an overseas assignment or other extended absence will automatically result in a loss of permanent resident status. Many people have accepted temporary assignments of several years in length and had no issues retaining LPR status. However, to the extent possible, the following actions are recommended:

• Retain the intent to be a lawful permanent resident of the United States and consider all absences to be temporary visits abroad.
• File tax returns as a permanent resident of the United States. Filing as a nonresident alien or failure to file raises a rebuttable presumption of relinquishment of permanent resident status.
• Return to the United States as often as possible. If possible, return to the United States within six months of any departure. While a green card can be used for entry following an absence of one year or less, under a law passed in 1996, an LPR can be treated as seeking admission to the United States under the immigration laws if absent from the United States for a continuous period of more than 180 days. Additionally, absences of six months or more will have an impact on a later application for naturalization. Returns within six months are not always practical or even possible and, for administrative purposes, DHS has seldom aggressively pursued LPRs as individuals seeking admission when returning to the United States after an absence in excess of six months. However, when possible, return within a six-month period is a positive step.
• If the assignment is expected to last beyond six months, apply for a re-entry permit. While the re-entry permit will not guarantee retention of permanent resident status, it provides strong evidence of intent to retain such status. It also allows an LPR to return to the United States following an absence of over one year, during the validity of the permit, up to two years.
• The overseas assignment should be for a fixed, temporary period with an ultimate intent of return to the United States. (Document the temporary nature of the assignment.)
• Remain on the U.S. company payroll, if possible and practical.
• Retain property in the United States. If possible and practical, retain a home in the United States and full right of access to it.
• Keep immediate family members in the United States, if possible and practical.
• Retain memberships in U.S. organizations.
• Retain U.S. bank accounts.
• Retain a U.S. driver's license.
• Retain a U.S. address.

Maintaining Continuous Residence for Naturalization

An LPR going abroad for an extended period has more than maintenance of permanent resident status to consider if he is interested in obtaining U.S. citizenship. One of several requirements which must be met in order to naturalize is that of five years of continuous residence in the United States following admission as a lawful permanent resident (three years if married to a U.S. citizen).[2] The individual must have been physically present in the United States for at least half of that time.

Continuous residence for naturalization purposes is meant to be an objective inquiry into the person's "…domicile or principal actual dwelling place, without regard to intent." 8 C.F.R. § 316.5(a). Fulfillment of the continuous residence requirement is assessed by looking at the length of each absence from the United States during the requisite five-year period (three-year period for spouses of U.S. citizens). Absences of less than six months do not break continuous residence. Absences of six months to one year will presumptively break continuous residence. Documentation needed to rebut the presumption of loss of continuous residence includes "…but is not limited to, evidence that during the absence: (A) The applicant did not terminate his or her employment in the United States; (B) The applicant's immediate family remained in the United States; (C) The applicant retained full access to his or her United States abode; or (D) The applicant did not obtain employment while abroad." 8 C.F.R. § 316.5(c)(1)(i). Absences in excess of one year conclusively break continuous residence for naturalization purposes. Unless a very limited exception applies, an LPR will need to rebuild five years of continuous residence, with at least half of the time physically present in the United States before applying for naturalization.[3] He will be able to apply no earlier than four years and one day after return to the United States as a permanent resident following the extended absence.

Some LPRs who will be abroad for extended periods are able to apply to preserve their continuous residence for naturalization purposes. The application is made on Form N-470, Application to Preserve Residence for Naturalization Purposes. To be eligible, an LPR must document one full year of continuous, unbroken physical presence in the United States after acquiring lawful permanent residence. The applicant must be employed or under contract with (a) the U.S. government; (b) an American institution of research recognized by the attorney general; (c) an American firm or corporation engaged in whole or in part in the development of foreign trade or commerce of the United States; (d) a subsidiary of such American firm or corporation, 50 percent or more of whose stock is owned by an American firm or corporation; or (e) a public international organization of which the United States is a member by treaty or by statute and by which the individual was not employed until after becoming an LPR.

An LPR must establish to DHS prior to beginning such employment, whether before or after departure from the United States, but in either case before being absent for one year, that the absence will be: (a) on behalf of the U.S. government; (b) for the purpose of carrying on scientific research on behalf of the qualifying research institution; (c) to engage in the development of foreign trade and commerce on behalf of the qualifying firm or corporation or subsidiary; (d) needed to protect the property rights in such countries of the qualifying U.S. firm, corporation or subsidiary which is engaged in the development of foreign trade and commerce; or (e) for the purpose of employment by the qualifying public international organization. Finally, the applicant must demonstrate to DHS that, in effect, his or her absence from the United States for such period was for the described purposes. If the application is approved, the individual will be able to retain continuous residence for naturalization purposes despite being absent from the United States for more than one year.

Conclusion

Maintaining lawful permanent residence and continuing residence for naturalization are both important issues for LPRs. Confusion of these concepts is an all too common occurrence which can come back to haunt an LPR in the future. It is important that an LPR understand both concepts so that he can plan appropriately based on both long and short-term immigration goals.