The proper care and feeding of the Green Card: How physical presence in the US affects the right to live permanently in the US and eligibility for US citizenship

Leave a reply

United States permanent residence and the right to travel outside the United States with the Green Card

Beginning with my answer to a similar question on Quora …

Read John Richardson‘s answer to Can a person living in the US with a Greencard travel to other countries? on Quora

Part A – Immigration: Rights and opportunities under the Immigration and Nationality Act – Why U.S. residence and physical presence matters in retaining “permanent resident” AKA Green Card status

The Right To Reside Permanently In The United States

The right to reside permanently in the United States granted as an “Immigrant Visa” vs. the “Green Card” as evidence of that right

An “immigrant visa” (as opposed to the many “non-immigrant visas) is issued to a person intending to live permanently in the United States. It’s validity (and continued validity) is dependent on the “intention” to reside permanently in the United States. If the “intention” to live permanently in the United States ceases, then the “immigrant visa” is subject to revocation. The “Green Card” is NOT the “immigrant visa” but is a document (often used as a “travel document”) which is evidence of having the “immigrant visa”. There is a difference between the Green Card as a “travel document” (which must be renewed) and a person’s right to the continuation of the “immigrant visa”. The continuation of the “immigrant visa” is based on “intention”. Once the “intention” to reside permanently in the United States ceases, the “immigrant visa” will be lost. Although the green card, may be valid as a “travel document” (allowing the individual to enter the United States within a year from the prior departure), he or she could be still found to have lost the intention to reside permanently in the United States. The loss of “intention” would result in the loss of the “immigrant visa”.
(A Green Card as a “travel document” allows for absences from the United States for no more than one year. Those Green Card holders who plan to leave the United States for more than one year should consider applying for a “Reentry Permit” issued under S. 223 of the Immigration and Nationality Act. The “Reentry Permit” is valid for no more than two years from the date of issue. A “Reentry Permit” does not guarantee entry into the United States. However, it will assist in establishing the intention to permanently reside in the United States.) The I-131 specifically asks whether one has filed a 1040-NR while being outside the United States!

The key point is:

Once you are issued an “immigrant visa” you may lose that “immigrant visa” if it is determined that you cease to have the intention to live permanently in the United States. Continuous residence in the United States is NOT required to maintain the “immigrant visa”. The continuous INTENTION to reside permanently in the United States is required to maintain the “immigrant visa”.

Part B – Immigration: Rights and opportunities under the Immigration and Nationality Act – Why physical presence in the United States is relevant to naturalizing as a U.S. citizen

Continuous U.S. residence and applications for U.S. citizenship

The “residence” requirements to naturalize as a U.S. citizen are found in S. 316 of the Immigration and Nationality Act which include:

Sec. 316. [8 U.S.C. 1427]

(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

(b) Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a) , shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

In order to successfully “naturalize” as a U.S. citizen United States residence must be proven.

In Summary – Residence matters.

Maintaining The “immigrant visa”: The “immigrant visa” is valid only as long as the intention to live permanently in the United States continues. Actual residence in the United States is relevant to proof of intention to live permanently in the United States.

Naturalization as a U.S. Citizen: U.S. citizen:Actual residence in the United States is necessary in order to naturalize as a U.S. citizen. Interestingly one of the primary reasons to naturalize as a U.S. citizen is so that one can move from the United States, not be subject to the S. 877A Exit Tax and maintain the right to return!

How do the requirements for maintaining the “immigrant visa” and “naturalizing” as a U.S. citizen bear relate to the U.S. tax compliance?

This issue is explored in another post with specific reference to whether a Green Card holder should use the Section 911 Foreign Earned Income Exclusion.

John Richardson

Leave a Reply