Residency and travel abroad: Avoid losing your residency (Dec. 2011)
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Our topic for this issue is Residency and travel abroad, and how you can avoid losing your residency. We hope that you find it useful and informative and please forward to anyone you think may benefit from this information.
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Residency and travel abroad: Avoid losing your residency
Can I maintain my Legal Permanent Resident Status if I am outside the U.S. for an extended period of time?
Legal Permanent Residents face numerous restrictions or limitations related to travel outside the U.S.
A permanent resident may lose his/her “resident” status if he/she travels outside the U.S. and remains without permission for a continuous period of more than 180 days, or if he/she travels outside the U.S. multiple times for extended periods of time even if each period is less than 180 days. If a person remains outside the US for more than 180 days, his residence is presumed to have been abandoned. However, a resident will be given the opportunity to show that it was not his/her intention to abandon his residency. If the resident remains outside the US more than 365 days, a resident will generally no longer be given this opportunity.
Are there other penalties for residents for remaining outside the US more than 180 days?
In some instances an individual can lose the rights to benefits that were previously earned through the social security program.
What information will U.S. officials review to determine whether a person has lost his permanent resident status by remaining outside the U.S. for an extended period of time or by traveling outside the US multiple times for extended periods of time (even if they are less than 180 days each)?
Courts that have examined claims that permanent resident status has been lost due to travel outside of the U.S. have stated that the important elements for consideration are:
- Is the visit for a period of time relatively short, fixed by some pre-determined event, or will the visit terminate upon the occurrence of an event that will likely occur within a relatively short period of time. (See Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005));
- Family ties in the U.S. and abroad;
- Property holdings in the U.S. and abroad;
- Employment or business affiliations in the U.S. and abroad;
- Licenses, Insurances, Medical Providers and Investments in the U.S. and abroad; and
- Payment of U.S. taxes on worldwide income
The balance of connections, ties, contacts, taxes and time should be weighed toward the U.S.
A stated desire to maintain permanent resident status, without more, is insufficient; the intention or desire must be supported by his actions. (See Matter of Huang, 9 I&N Dec. 749, 754 (BIA 1988))
Is it possible for a legal permanent resident to obtain permission to remain outside the US for more than 180 days?
Yes, an individual may apply for special permission to remain outside the US for more than 180 days, however, this is a discretionary grant and not a right, so the petition should be supported by strong evidence that it is necessary or of substantial importance. This permission may be granted for up to two years.
What should residents keep in mind when declaring their taxes?
Residents the same as citizens are taxed on their worldwide income and failure to properly report income is a violation of the law that can have serious negative consequences. (See 8-105 Immigration Law and Procedure § 105.03, Matthew Bender © 2010, and 26 CFR § 301.7701(b)-1))
In what other ways may you lose your legal permanent residency?
There are many reasons a person can lose their legal permanent residency. Some common ones in addition to remaining outside the US for extended periods of time, include being convicted or a crime; false, improper or erroneous information on prior immigration applications; failure to apply for removal of conditions on a residency in a timely manner (for conditional residents), failure to comply with the requirements of conditional status (for conditional residents), and a violations of certain immigration laws or regulations.
Do adoptive or naturalized US citizens have similar limitations as legal permanent residents?
No they do not. This why it is recommended that you apply for your citizenship as soon as you are legally eligible. Residents have virtually all the responsibilities of citizens with far fewer benefits.