Published: April 23, 2011
It is not uncommon for newly approved green card holders to want to leave the U.S., and for an extended period. Whether they spent many years in the U.S. waiting for approval of their permanent resident status or they recently arrived from their homeland on an immigrant visa, the new green card holder will often seek to embark on a new path, or continue on a previously started one, outside the U.S.
Individuals granted lawful permanent residence status in the U.S. and issued an Alien Registration Card (aka “green card”) are expected by the U.S. government to be living in the U.S. That being said, U.S. residents are allowed great flexibility in departing the U.S. for extended periods, and sometimes for as long as two years. But inevitably, problems arise when the extended visits outside the U.S. are frequent and successive, or get really extended.
In general, a lawful permanent resident is allowed to travel outside the U.S. for a period of up to one year without any special documentation other than his green card. If the lawful permanent resident applies for a Re-Entry Permit prior to departing, he will be eligible to depart the U.S. for up to 2 years – just so long as he is in possession of the permit prior to reentering. It is also important to note that while applicants for Re-Entry Permits must be present in the U.S. when applying (FORM I-131), they are indeed allowed to depart the U.S. before the document is actually issued. However, an applicant for Re-Entry Permit should be sure to wait to have their biometrics fingerprints taken following the submission of their application and before departing the U.S. – an appointment that usually gets scheduled within 4 to 6 weeks of filing.
If a permanent resident makes extended visits outside the U.S. in successive years, he takes the chance that his green card will be taken from him upon trying to reenter. For example, a permanent resident who leaves the U.S. for 11 months in 2010, 11 months in 2009 and 11 months in 2008, is likely to be greeted quite nastily by the U.S. immigration inspector when he tries to reenter the U.S. in 2011 after his yearly 11 month “visit” outside the U.S. That is because it is the job of the inspector to determine if the green card holder is really living in the U.S. or only a visitor to the U.S., but just enjoys the convenience of a green card. This permanent resident will likely be stripped of his green card after his 2011 trip, and if not, definitely after his 11 month trip in 2012.
Another important consideration is whether the lawful permanent resident intends on applying for U.S. citizenship. For intending applicants for U.S. citizenship, departures of 6 months or more during their qualifying 5 year period of permanent residence (or 3 years for those married to US citizens) will generally have a negative impact on their eligibility. There are exceptions of course, particularly if the permanent resident might be assigned to work abroad for a multinational corporation that has a U.S. branch or subsidiary. (See Form N-470, Application to Preserve Residence for Naturalization Purposes.)
What if a permanent resident departs the U.S. for more than 1 year, without a reentry permit, or for more than 2 years, even with a reentry permit?
U.S. law recognizes that circumstances may arise so as to justify such an extended trip and allow the permanent resident to reenter the U.S. as a “Returning Resident”. When the permanent resident’s trip outside the U.S. becomes extended due to unforeseeable circumstances beyond their control that arose following departure, such as the unexpected medical condition of an immediate family member overseas or perhaps their own unexpected illness, then the U.S. Embassy will entertain the resident’s application for a Returning Resident visa. With such a visa the permanent resident will retain their status despite the extended departure and be allowed reentry, but not after having a U.S. consular officer thoroughly scrutinize all details surrounding the applicant’s claim of “unforeseeable circumstances”.
It is also important to note that permanent residents with very extended departures who do not have the type of excuse required for Returning Resident eligibility may still avail of a new immigrant visa by being re-petitioned by some U.S. family member or employer. And these days, those that are the spouses or under 21 year old children of U.S. citizens or parents of adult U.S. citizen will generally wait less than 1 year for such a new petition process to yield a new immigrant visa.
Lastly, permanent residents who are issued their status on a 2 year conditional basis will have many other special factors to consider in planning extended trips outside the U.S. and may therefore be far more restricted in their travel options.
PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois