— Citizenship Lawyer (@ExpatriationLaw) September 26, 2017
Once you have been granted the right to live permanently in the United States, and become a “lawful permanent resident”, it is important that you maintain the intention to live permanently in the United States. If you cease to intend to live permanently in the United States then you have lost the right to live permanently in the United States.
As a “lawful permanent resident” you are free to travel outside the United States. Like all people (including U.S. citizens) who travel outside the United States, you are required to have the appropriate travel documents. The State Department provides the following guidance:
Does travel outside the United States affect my permanent resident status?
Permanent residents are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status. A general guide used is whether you have been absent from the United States for more than a year. Abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence. While brief trips abroad generally are not problematic, the officer may consider criteria such as whether your intention was to visit abroad only temporarily, whether you maintained U.S. family and community ties, maintained U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver’s license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.
What if my trip abroad will last longer than 1 year?
If you plan on being absent from the United States for longer than a year, it is advisable to first apply for a reentry permit on Form I-131. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit’s validity without the need to obtain a returning resident visa from a U.S. Embassy or Consulate abroad. Please note that it does not guarantee entry into the United States upon your return as you must first be determined to be admissible; however, it will assist you in establishing your intention to permanently reside in the United States. For more information, see the “Travel Documents” page.
If you remain outside of the United States for more than 2 years, any reentry permit granted before your departure from the United States will have expired. In this case, it is advisable to consider applying for a returning resident visa (SB-1) at the nearest U.S. Embassy or Consulate. An SB-1 applicant will be required to establish eligibility for an immigrant visa and will need a medical exam. There is an exception to this process for the spouse or child of either a member of the U.S. Armed Forces or civilian employee of the U.S. Government stationed abroad on official orders. For more information on obtaining a returning resident visa, see the Department of State’s webpage on returning resident visas.
Additionally, absences from the United States of six months or more may disrupt the continuous residency required for naturalization. If your absence is one year or longer and you wish to preserve your continuous residency in the United States for naturalization purposes, you may file an Application to Preserve Residence for Naturalization Purposes on Form N-470. For more information, please see the “Continuous Residence and Physical Presence Requirements” page.
A “reentry permit” can be applied for only from inside the United States. Although a “reentry permit” cannot be renewed, it is possible to apply for a new “reentry permit”. The statutory authorization for the “reentry permit” is found in Section 223 of the Immigration and Nationality Act which reads as follows:
INA: ACT 223 – REENTRY PERMITS
Sec. 223. [8 U.S.C. 1203]
(a) (1) Any alien lawfully admitted for permanent residence, or
(2) any alien lawfully admitted to the United States pursuant to clause 6 of section 3 of the Immigration Act of 1924, between July 1, 1924, and July 5, 1932, both dates inclusive, who intends to depart temporarily from the United States may make application to the Attorney General for a permit to reenter the United States, stating the length of his intended absence or absences, and the reasons therefor. Such application shall be made under oath, and shall be in such form, contain such information, and be accompanied by such photographs of the applicant as may be by regulations prescribed.
(b) If the Attorney General finds
(1) that the applicant under subsection (a)(1) has been lawfully admitted to the United States for permanent residence, or that the applicant under subsection (a)(2) has since admission maintained the status required of him at the time of his admission and such applicant desires to visit abroad and to return to the United States to resume the status existing at the time of his departure for such visit,
(2) that the application is made in good faith, and
(3) that the alien’s proposed departure from the United States would not be contrary to the interests of the United States, the Attorney General may, in his discretion, issue the permit, which shall be valid for not more than two years from the date of issuance and shall not be renewable. The permit shall be in such form as shall be by regulations prescribed for the complete identification of the alien.
(c) During the period of validity, such permit may be used by the alien in making one or more applications for reentry into the United States.
(d) Upon the return of the alien to the United States the permit shall be presented to the immigration officer at the port of entry, and upon the expiration of its validity, the permit shall be surrendered to the Service.
(e) A permit issued under this section in the possession of the person to whom issued, shall be accepted in lieu of any visa which otherwise would be required from such person under this Act. Otherwise a permit issued under this section shall have no effect under the immigration laws except to show that the alien to whom it was issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning.
The application for the “reentry permit” asks whether you have ever filed a 1040NR as a tax return
— Citizenship Lawyer (@ExpatriationLaw) September 26, 2017
Q. Is filing a 1040NR (a tax return used by those who claim to NOT be residents of the United States) evidence that one does NOT have the intention to reside permanently in the United States?
A. It may invite the inference that one has abandoned his status as a “lawful permanent resident”.
Those wishing to retain their status of “lawful permanent residents” should think carefully before filing a 1040NR.