Abandonment of Lawful Permanent Residence – Part Two
The LPR’s intent to return to the US
Whether the LPR does intend to reside permanently in the US, even though he/she spends time outside the country, is an important abandonment factor. Intent to live in the US includes the intent to work in the US (through employment or a business) or to have an actual home in the US. The intent factor applies not just when the LPR wants to return – but the entire time the LPR is in a foreign country. A timely LPR visit (generally less than one year from the departure) or the possession of a reentry permit is not evidence of intent to reside in the US permanently. In the same way, failure to obtain a reentry permit doesn’t mean the LPR didn’t want to stay in the US permanently.
The continual US ties factor
Multiples ties to the United States, while abroad, help to confirm that the LPR did not abandon his/her LPR status. Examples of these ties, according to the State Department, include:
Filing the US and state income tax returns – as a US resident
Keeping a home/property in the US while abroad
Keeping business affiliations in the US while abroad
Possession of driver’s license with a US address
“Immediate family members residing in the United States who are U.S. citizens, LPRs, or are seeking citizenship or LPR status.”
The USCIS will also consider the LPR’s connections with people outside the US including:
“Immediate family members residing outside of the United States
Property and business ties in a foreign country
Employment by a foreign employer or foreign government
Voting in foreign elections
Running for political office in a foreign country
Frequent and extended trips outside of the United States.”
The USCIS considers it a rebuttable presumption that a person has abandoned his/her LPR status if that person:
“Voluntarily claims alien status to qualify for special exemptions from income tax liability”
Doesn’t file federal or state income tax returns – on the basis the persons consider themselves to be nonresident aliens.
The presumption can be rebutted with sufficient evidence.
Additional evidence to help show a person intended to keep their permanent US residence includes:
Keeping up the family ties – such as children or other relatives who reside lawfully in the US – attending school
Owning or renting real or personal property in the US
“Current or recent employment or education in the United States”
When considering the abandonment issues in a naturalization application, USCIS will consider the available documentation. They may also issue a Request for Evidence for more information.
Preserving your US residence
Applicants may want to protect their naturalization application if they leave the US for a year or more by preserving their US residence – through a formal application process.
There may be occasions when an LPR does want to record the abandonment of their LPR status. This process can be achieved through the filing of a Record of Abandonment of Lawful Permanent Resident Status (Form I-407). There is no requirement for an LPR to file this form.
What factors should you consider before you leave the US?
If you anticipate leaving the US for a substantial period of time, you should review your right to obtain a re-entry permit. That permit should give you two years to reenter instead of just one. You should also review your obligations with an experienced immigration lawyer – especially since you may need to take important supporting documentation with you.