Preserving permanent residency when outside the US

After several years of anxious waiting and costly effort in obtaining permanent residency, you must, by all means, ensure that you do not lose it. Aside from the benefits of being a greencard holder, such as legal employment in the US and the privilege of petitioning your family, permanent residency leads to acquiring US citizenship through naturalization. As the term "permanent residency" suggests, it is expected that for the most part, you are staying in the US and residing there permanently.

One of the ways in which your status as a permanent resident maybe put into question is when you stay outside the US for a period of time, such that an abandonment of residency may be inferred. There are three timeframes you have to keep in mind: less than six months; six months to one year; and one year or more. Each timeframe has its specific requirements in order to preserve your permanent residency status.

Less than six months. Travel outside the US for less than six months should not generally pose a problem. I say "generally" because there are instances when even for less than six months outside the US, abandonment of residency may occur, such as voluntary surrender of a green card or moving to another country with a clear intent to reside there permanently. However, in most cases, what you need when you come back to the US after less than six months of absence is just your unexpired passport and your green card.

Six months to one year. Staying outside the US for more than six months but less than one year creates a reasonable and rebuttable presumption that you intend to abandon your permanent residency. It is rebuttable because you can provide proof to dispute that presumption. Upon entry to the US, you would still need to present your green card and provide other evidence that you did not intend to abandon your permanent residency status. These evidence may include documents showing ownership of your residence and properties in the US, filing taxes as a US resident, bank account statements, presence of family ties in the US, documents showing proof of staying outside the US, such as medical certificates, employment letters, affidavits from third parties detailing their personal knowledge of your absence from the US and any other related proof.

One year and more. Absence in the US for one year or more invalidates your green card. You cannot use it as your entry document and you may be considered to have abandoned your permanent residency. You must have had applied for a re-entry permit while you were in the US if you anticipated that you would be outside the US for more than one year. The re-entry permit is valid for two years and is non-extendable. If your primary intention was to return to the US within one year or two years (of your re-entry permit) but there are other factors beyond your control that prevented you from doing so, you may qualify for a returning resident visa to be applied at the US Embassy in Manila. If you are found to be ineligible for a returning resident visa, a new visa petition must be filed in your favor. In essence, you go back to zero, and all the agony that comes with it.

One quick side note: Do not fall for the misconception that you can preserve your permanent residency by just merely coming to the US at least once a year and staying even just for a few days and for "as long as your passport is stamped showing your entry to the US." This does not hold true. A decision whether you have abandoned your permanent residency or not does not rest only on one act but on the totality of your actions. A "single entry once a year" does not pass this test.

As indicated above, you must take reasonable steps in order to safeguard your permanent residency status. You must protect your green card as much as it protects you.

This column is not a substitute for professional legal advice obtained from a US-licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader's specific immigration case. No attorney-client relationship is and shall be established with any reader.

For any questions, comments and observations, please contact Atty. Marco Tomakin at [email protected].