U.S. Permanent Residency

Permanent resident or ‘green card’ status allows an individual to live permanently in the United States. Below are a few FAQs about permanent residency status.

Whether you are a foreign investor, or an individual interested in setting up a business in the United States, if you have questions about filing for a green card application, call Foster LLP today. To schedule a consultation with an attorney at our immigration law firm, we invite you to reach out to one of our principal offices located in Austin and Houston, TX.

What is permanent resident status and how is it different from U.S. citizenship?

‘Lawful permanent resident status’ is defined under U.S. immigration law as an alien ‘lawfully accorded the privilege of residing permanently in the U.S. so a permanent resident has the privilege of being able to reside in the U.S. on a permanent basis and has virtually unrestricted authorization to work in any job, for any employer, including self-employment, with the exception of certain positions that require U.S. citizenship. Proof of permanent resident status is the ‘Green Card’, Form I-551. With limited exceptions, the card is valid for 10 years and must be renewed however, while the card may expire, permanent resident status itself does not ‘expire’. Unlike a U.S. citizen, a permanent resident has no right to vote in a U.S. election or serve on a jury.

Can permanent resident status be lost?

Yes, permanent resident status can be lost voluntarily or involuntarily. Permanent resident status can be lost voluntarily by becoming a U.S. citizen. After 5 years in permanent resident status (3 years, if married to a U.S. citizen) one is eligible to apply to become a U.S. citizen by naturalization. Once naturalized as a U.S. citizen, one ceases to be a U.S. permanent resident. A permanent resident can also voluntarily give up his ‘green card’ by signing a form before a U.S. consular or immigration officer to ‘relinquish’ status. Permanent resident status can be lost involuntarily based on the grounds of inadmissibility or removability listed in the Immigration Act. These grounds include criminal offenses (even minor offenses involving controlled substances, firearms, alien smuggling, and domestic abuse), security related grounds, communicable disease, etc. These problems can be uncovered upon return to the U.S. after international travel as the various security clearance databases are checked, or can be triggered by an arrest or by detaining and questioning by a law enforcement or immigration officer.

Finally, permanent resident status can also be lost through abandonment. Abandonment can occur due to extended periods abroad, such as an overseas work assignment. The test used to determine whether permanent resident status has been abandoned is: ‘Whether the alien is returning to an unrelinquished lawful permanent residence in the U.S. after a temporary absence abroad’. This requires less than a permanent dwelling place in the U.S. , but more than mere desire to retain permanent resident status. The permanent resident’s intention must be for the absence from the U.S. to be only temporary, and there must be evidence documenting this intent. A ‘totality of the circumstances’ analysis is used by Immigration to determine whether a permanent resident has ‘abandoned’ permanent resident status and no longer has an intent to be only ‘temporarily absent’. Factors that are considered include: close family ties in the U.S.; property holdings in the U.S.; whether the employer is a U.S. company; the reason for the absence; duration of the absence; business affiliations in the U.S. and abroad. The ‘burden of proof’ is on the government to prove abandonment of lawful permanent resident status by clear, unequivocal and convincing evidence.

An immigration officer reviewing the case must be convinced that the absence from the U.S. is temporary and the permanent resident has the intent to return to the U.S. upon completion of the assignment abroad.

What measures can be taken by permanent residents temporarily living abroad to avoid a finding of abandonment?

1. File U.S. Federal Income Tax returns as a ‘U.S. Resident’ – filing as a ‘Non-Resident’ raises a rebuttable presumption of abandonment

2. Apply for a Re-Entry Permit – does not guarantee admission to the U.S. and a finding of no abandonment of status, while a re-entry permit, it is a declaration which helps establish the permanent resident’s intent not to abandon status. The application must be filed while the permanent resident is physically present in the U. S.; however, the permanent resident can then depart and have the permit mailed to him abroad upon approval. A Re-entry permit is normally issued with a validity period of 2 years, so this document may allow a permanent resident to re-enter after up to a 2-year absence. After a permanent resident is absent for more than 4 years of the 5 years preceding an application, validity of only 1 year is given. 

3. Document ties to the U.S., such as —

• Proof of property ownership, especially a home
• U.S. bank and savings accounts; credit cards; and insurance policies
• U.S. driver’s license
• Family members residing in the U.S.
• Employment with a U.S. company abroad & temporariness of the international assignment
• Any other evidence of the intent to return to the U.S. after a temporary absence
• Permanent residence of the intent to return in the U.S. after a temporary absence under a year should be prepared for questions from the immigration officer to determine the circumstances of the absence. After an absence of longer than 1 year, the immigration officer will ask questions to determine whether permanent resident status has been abandoned, and may refer the traveler for further immigration proceedings.