If you already have a green card, there are certain precautions you should take to keep it, i.e., not have the government take it away.
HOW TO KEEP YOUR GREEN CARD
This document describes certain precautions for U.S. permanent residents ("green card" holders) to take in order to maximize the chances of being able to maintain permanent residency status, i.e., "keeping your green card." Please note that the purpose of this document is to help law-abiding persons avoid common pitfalls that could cause them to inadvertently lose their green card. It is not intended for anyone who should not legally be able to keep their green card.
GENERAL RULE
It is very important to realize that U.S. immigration law requires that a green card holder must NEVER abandon the INTENTION of continuing to reside permanently in the United States. Once a green card holder abandons that intention, e.g., by settling permanently in some other country, that person can be found to have given up the right to keep their green card.
This matters most when you travel. Under INA 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), a returning permanent resident is normally not treated as applying for admission at all, and is simply readmitted, unless one of six things is true. The two that catch ordinary travelers are that you have abandoned or relinquished your status, or that you have been absent from the United States for a continuous period in excess of 180 days. So it is long or repeated absences that put your card at risk. And simply returning to the U.S. once a year for several weeks to use the green card is NOT enough. Many green card holders have lost their green cards even though they returned to the U.S. once a year.
WHAT CAN, AND CANNOT, HAPPEN AT THE AIRPORT
Inspections at airports and land borders are conducted by U.S. Customs and Border Protection (CBP). Reentry permits, green card renewals and naturalization are handled by U.S. Citizenship and Immigration Services (USCIS). Removal cases are decided by immigration judges of the Executive Office for Immigration Review, at the Department of Justice.
- A CBP officer cannot take your permanent residence away at the inspection booth, but a CBP officer can retain your green card and issue you a notice to appear in immigration court. Permanent resident status "terminates upon entry of a final administrative order of exclusion, deportation, or removal" (8 C.F.R. 1.2), which means it ends when an immigration judge orders it, after a hearing at which you may be represented. An officer who doubts you may question you at length, retain your card, or hand you a notice to appear in immigration court. The officer does not get to decide the abandonment question.
- You cannot be summarily removed once your status is verified. Under 8 C.F.R. 235.3(b)(5)(ii), if your claim to permanent residence is verified and that status has not already been terminated in proceedings, the examining officer shall NOT order you removed under the expedited removal provision. The officer decides only whether you are seeking admission under INA 101(a)(13)(C); if you then appear to be inadmissible, the route is a removal hearing under INA 240.
- DO NOT sign Form I-407--if you do not wish to willingly abandon your Lawful Permanent Resident Status. Form I-407, Record of Abandonment of Lawful Permanent Resident Status, is the form USCIS uses to record that you are VOLUNTARILY giving up your green card. Signing it is voluntary. No one can require you to sign, and refusing is not a crime. If an officer suggests that you have lost your residence and invites you to sign, you may politely decline and ask to be referred to an immigration judge instead. Signing gives away, in a moment at a counter, the very thing you would otherwise be entitled to contest.
- Missing or expired documents can often be waived on the spot. If you are returning to an un-relinquished residence but cannot present an unexpired green card, immigrant visa or reentry permit, you may apply at the port of entry for a discretionary waiver of the document requirement on a showing of good cause, under INA 211(b) and 8 C.F.R. 211.1(b)(3), using Form I-193 and paying the prescribed fee. Alternatively, your inspection may be deferred to an onward office so that you can produce the documents there (8 C.F.R. 235.3(b)(5)(ii)). If your card was simply lost or stolen and you have been absent less than one year, you apply for a replacement card under 8 C.F.R. 264.5 rather than for the waiver.
- You have no right to a lawyer during inspection. By regulation, nothing gives an applicant for admission the right to representation in primary or secondary inspection, unless the person has become the focus of a criminal investigation (8 C.F.R. 292.5(b)). You do have the right to counsel, at your own expense, once you are in immigration court. This is precisely why the preparation described below has to be done BEFORE you fly.
- Be accurate. Whatever the pressure, do not guess, exaggerate or invent answers about where you have been living, how long you were away, or what you were doing. A misstatement to an officer creates a separate and far worse problem than a long absence does.
PRECAUTIONS
Consequently, it is very important that other precautions, such as the following, be taken:
1. OBTAIN A REENTRY PERMIT
- If you will be leaving the U.S. for a year or more, obtain a reentry permit BEFORE you leave. Your green card works as an entry document only for a temporary absence of less than one year; after that it is the reentry permit, Form I-327, that gets you to the counter.
- A reentry permit is normally valid for TWO years from the date of issuance, so plan the trip to fit inside it. A permit cannot be extended.
- You must file the application while you are physically in the United States and in permanent resident status, and you must still be in the U.S. for the biometrics appointment. Do not book a one-way ticket out before that is done.
- Applying repeatedly does not automatically lead to a denial, which is a common misunderstanding. An application is denied if you already hold a valid permit that has not been returned or shown to have been lost. What actually happens to frequent applicants is that the permit gets SHORTER: if you have been outside the United States for more than four years in the aggregate since becoming a permanent resident, or during the last five years, whichever is less, the permit is limited to ONE year, subject to narrow exceptions.
- Remember what a permit is and is not. It is evidence that you did not intend to abandon your residence. It is not a guarantee of admission, and it does not stop the 180-day clock in INA 101(a)(13)(C)(ii), which results in a green card holder being deemed to seeking an admission into the United States after absences of 180 days or more and thereby being subject to greater scrutiny upon reentry.
2. FILE TAX RETURNS
- ALWAYS FILE A U.S. RESIDENT TAX RETURN, AS WELL AS ANY OTHER APPLICABLE STATE, CITY, OR LOCAL TAXES.
- Be sure to file resident tax returns, e.g., Form 1040, and not a nonresident return such as Form 1040-NR.
- Note that this does not necessarily mean that you must actually pay U.S. income taxes. It means that you must file a resident return and declare your worldwide income on it, even if much of that income ends up exempt through the foreign earned income exclusion or offset by foreign tax credits. Consult a tax adviser where applicable.
- Be especially careful with tax treaties. Electing to be treated as a resident of the other country under a treaty tie-breaker, in order to obtain exemptions from U.S. tax, is one of the most damaging things a green card holder can do. By regulation, voluntarily claiming nonresident status for income tax purposes, or failing to file federal or state returns because you consider yourself a nonresident, raises a rebuttable presumption that you have relinquished the privileges of permanent residence (8 C.F.R. 316.5(c)(2)).
- Keep copies of all tax returns you have filed as a resident, and BRING THESE COPIES WITH YOU WHEN ENTERING THE UNITED STATES.
3. MAINTAIN A U.S. ADDRESS, AND REPORT CHANGES
- Maintain a U.S. address, even if the address is the home of a friend or relative.
- If possible, do not use "in care of" for your address.
- DO NOT have a U.S. address which is a resort or hotel.
- Reporting address changes is not optional, it is a legal duty. You must notify the government in writing of each change of address, and of your new address, within TEN DAYS of the change (8 U.S.C. 1305(a); 8 C.F.R. 265.1). This is done on Form AR-11. Keep proof that you filed it.
4. MAINTAIN U.S. BANK ACCOUNTS
- You should leave open and continue to use U.S. bank accounts.
- For example, some employers, when assigning an employee overseas, will continue to pay the employee in U.S. dollars, depositing the amount directly into the employee's U.S. account.
5. MAINTAIN A U.S. DRIVER'S LICENSE
- You should continue to RENEW your U.S. driver's license.
- Be sure that the address on your license is the same as that recorded on any immigration documents.
- Carry your driver's license when entering the U.S.
6. MAINTAIN U.S. CREDIT CARD ACCOUNTS
- Keep at least one U.S. credit card account open and in active use, billed to your U.S. address.
- Continuous U.S. billing statements are easy to produce and are useful, low-effort evidence of an ongoing connection to the United States.
7. OWNERSHIP OF U.S. PROPERTY
- If possible, continue ownership of U.S. property, e.g., houses, condominiums, businesses, automobiles, etc.
- For example, a person assigned abroad may want to rent, rather than sell, his or her U.S. residence.
8. DOCUMENT REASONS FOR LONG STAYS ABROAD
- EMPLOYMENT CONTRACTS: Before leaving the U.S. on long assignments abroad, it is advisable to obtain a written employment contract, or letter, from your employer.
- The contract or letter should specify the terms and length of employment.
- If the employment will lead to a transfer back to the U.S., or to a U.S. based affiliate of the foreign employer, the contract or statement should include this fact.
- The same applies to absences that are not work related. If you are abroad caring for a sick relative, finishing a course of study, or unable to travel for medical reasons, gather the letters, records and documents that prove it while they are easy to obtain.
9. SOCIAL SECURITY NUMBER
- Be sure to maintain your Social Security number and your record of earnings, and keep your card somewhere safe.
- Permanent residents are issued an unrestricted Social Security card, one without a work limitation printed on it. If you were first issued a restricted card as a nonimmigrant and have not replaced it since obtaining your green card, ask the Social Security Administration for a replacement.
- Immigration officers do not ask for the physical card at inspection, and carrying it invites identity theft, so it is generally better to leave it at home and carry a record of the number instead.
10. SELECTIVE SERVICE
- Every man residing in the United States who is between the ages of 18 and 26, that is, up to his 26th birthday, must register with the Selective Service System (50 U.S.C. 3802). Nonimmigrants are exempt; permanent residents are not.
- Failing to register does not by itself endanger your green card, but it can block naturalization and certain federal benefits later, so it is worth confirming that the registration was made.
11. KEEP YOUR GREEN CARD VALID
- Be sure to renew your green card when it expires.
- An expired card does NOT end your permanent resident status. What it does is create practical problems: airlines may refuse to board you, and inspection becomes slower and more searching. The receipt notice USCIS issues for a properly filed renewal application extends the validity of the expired card for the period stated on the notice, so keep that notice with the card when you travel.
- Children who reach the age of fourteen (14) must file an application to replace their green card, unless the existing card will expire before the child's 16th birthday (8 C.F.R. 264.5(b)(8)). This is easy to forget, and it is the most common reason a teenager is pulled aside on a family trip.
- If you hold a two-year conditional card, Form I-90 is not the answer. Conditional residents must timely file the appropriate petition to remove the conditions on residence, and failing to do so puts the status itself at risk, not merely the card.
12. DO NOT TRY TO COME BACK ON A VISITOR VISA
- DO NOT return to the U.S. using any form of nonimmigrant visa. Applying for and using a visitor visa is itself evidence that you have given up permanent residence, and a U.S. consulate will not ordinarily issue one to a person who still holds a green card.
- If you have been outside the U.S. for more than a year without a reentry permit, or your permit has expired, the correct route is a returning resident, or SB-1, special immigrant visa under INA 101(a)(27)(A). A consular officer must be satisfied that you were a permanent resident when you departed; that you departed intending to return and never abandoned that intention; and that you are returning from a temporary visit abroad, where a protracted stay was caused by reasons beyond your control and for which you were not responsible. That third requirement is where most SB-1 applications fail, so gather the proof early.
13. IF YOU HAVE ANY CRIMINAL HISTORY, GET ADVICE BEFORE YOU TRAVEL
- Under INA 101(a)(13)(C)(v), a permanent resident who has committed an offense identified in INA 212(a)(2), which covers crimes involving moral turpitude and controlled substance offenses among others, IS treated as applying for admission on return, no matter how brief the trip, unless relief has since been granted under INA 212(h) or INA 240A(a).
- This reaches old matters, cases resolved by plea, and cases you may have been told were dismissed or expunged. Obtain the actual court records and have them reviewed BEFORE you buy a ticket. A weekend trip abroad is the most common way a long-settled criminal record resurfaces.
14. CONSIDER NATURALIZING
- The only permanent cure for the abandonment problem is U.S. citizenship. Once you naturalize, you may live abroad for as long as you like without any of this applying to you.
- Be careful, though, because the rules for KEEPING a green card and the rules for QUALIFYING to naturalize are different. Time abroad can break the continuous residence that naturalization requires even while your green card remains perfectly safe. An absence of one year or more breaks it automatically (8 U.S.C. 1427(b)), and a reentry permit does not prevent that.
WHAT TENDS TO ATTRACT A SECOND LOOK
None of the following is against the law, and none of them will cost you your green card by itself. They are simply travel patterns that, in practice, tend to draw a referral to secondary inspection, because they suggest at a glance that the traveler lives somewhere else. If your situation is already delicate, e.g., a long absence or a thin record of U.S. ties, they are worth avoiding where you conveniently can.
- Arriving on a chartered flight on which nearly all the other passengers are nonimmigrant visitors.
- Arriving together with a spouse or children who are neither U.S. citizens nor permanent residents, particularly if they are coming for only a short visit. This is a weak signal at most, and it is no reason to make your family travel separately.
- Arriving at a port of entry that serves mainly as a gateway to a resort area.
- Traveling on a round-trip ticket that terminates outside the United States, which reads as though your home is elsewhere.
Far more useful than avoiding any of these is arriving prepared. Keep your evidence in your carry-on, not in checked baggage: tax returns or transcripts, proof of employment, your lease or mortgage statements, bank and credit card statements, your driver's license, and, if the absence was long, the letters and records that explain why.
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NOTE: That even if you take all of the above precautions, there is NO GUARANTEE that a CBP officer will not find you inadmissible for some other reason, e.g., for having committed a crime involving moral turpitude. The above information is intended solely as general reference information. It is not legal advice. Consultation with an immigration attorney is recommended. In addition, please note that immigration laws frequently change.
HOW ANTAO & CHUANG CAN HELP
Antao & Chuang has many years of experience advising permanent residents who live, work or study outside the United States, and who need their green card to still be there when they come back. The firm handles the whole range of practical detail that this page describes: preparing and filing reentry permit applications and coordinating the biometrics appointment around a departure date; renewing, replacing or correcting a green card; petitions to remove the conditions on conditional residence; timing trips around the 180-day and one-year thresholds; assembling the documentary record that shows an unbroken intention to return; returning resident, SB-1, applications and port-of-entry waiver requests where a permit has expired or was never obtained; and naturalization planning where continuous residence is at stake.
Experience matters here because almost nothing in this area is decided by a clean rule. Whether an absence was a temporary visit abroad, whether a record is strong enough, whether to travel at all this year, and what to do when an officer at the counter asks you to sign a form, are all judgment calls informed by how these cases actually unfold. That judgment is what the firm brings.
The stakes also argue for retaining counsel rather than improvising. Permanent residence, once given up, is rarely easy to recover, and the moment when it is most at risk, at inspection, is the one moment when you have no right to a lawyer at your side. The work has to be done beforehand.
Contact us to discuss your travel plans and your permanent residence.
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