Maintaining Legal Permanent Residency Status After Trips Abroad
Section 101(a)(20) of the Act, a returning resident may present an Alien Registration Receipt Card (I-551) in lieu of an immigrant visa if returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year. 8 C.F.R. § 211.1(b). Returning permanent residents are permitted to reenter the country after foreign travel. See Aleem v. Perryman, 114 F.3d 672, 676 (7th Cir. 1997). To qualify as a returning permanent resident, the resident "must have acquired lawful permanent resident status . . ., must have retained that status from the time that [he] acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad." Moin, 335 F.3d at 418 (quoting Matter of Huang, 19 I. & N. Dec. 749, 753 (BIA 1988)). If, however, the resident is not returning from "a temporary visit abroad," he will be deemed to have abandoned permanent resident status and be excluded from the United States. See Aleem, 114 F.3d at 676. Therefore, the determinative question is whether Katebi's trips constitute "temporary visits abroad."
While the term "temporary visit abroad" is inherently nebulous, there is general agreement that a permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a temporary visit abroad only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit.
An “unrelinquished lawful permanent residence," as used in 8 C.F.R. § 211.1(b) (1988), can have reference to something less than a permanent dwelling place in the United States. See Saxbe v. Bustos, 419 U.S. 65 (1974); Matter of Kane, supra. Consequently, an alien’s lack of an actual dwelling place in this country is not, in and of itself, determinative in ascertaining whether he is returning from a temporary absence abroad. See Matter of Kane, supra; see also Matter of Guiot, 14 I. & N. Dec. 393 (D.D. 1973).
Chavez-Ramirez v. INS, 792 F.2d 932, 936-37 (9th Cir. 1986); see also Khodagholian, 335 F.3d at 1006-07; Aleem, 114 F.3d at 677. Ultimately, the issue is one of intent. See Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002) (per curiam) (citing United States ex rel. Polymeris v. Trudell, 49 F.2d 730, 732 (2d Cir. 1931)). "The relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period of time." Singh, 113 F.3d at 1514. Nonetheless, "what is a temporary visit cannot be defined in terms of elapsed time alone." Aleem, 114 F.3d at 677 (quoting Trudell, 49 F.2d at 732). In other words, a returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period; the key remains whether his activities are consistent with an intent to return to the United States as soon as practicable. See Singh, 113 F.3d at 1514.
An alien's desire to retain her status, without more is not sufficient. Matter of Kane, supra. The length of the applicant's absence from the United States is a significant factor in showing her intent to abandon her lawful permanent resident status. In Matter of Huang, the court found that except for brief 3- to 4-week visits each year, the applicant and her children had been absent from the United States for approximately 4 years at the time of their last attempted entry in May 1986. During these brief visits, the applicant and her children resided with the sister of the applicant's husband. Although the applicant and her husband owned a house in Los Angeles, California, since 1985, they never maintained a residence in the United States since being granted lawful permanent resident status in 1982. Since being granted that status, the applicant and her children had been living in Japan. The applicant's children received their schooling in Japan and had reportedly only gone to school in this country for brief periods in 1982 and 1984 while visiting the sister of the applicant's husband. Additionally, the applicant and her husband owned a home in Japan until 1985; and the applicant and her husband were both employed in Japan. Thus, based upon the foregoing facts, the court in Matter of Huang held that the absences of the applicant were not temporary, and that she abandoned her LPR status.
Factors to be considered in evaluating the alien's intent include the alien's family ties, property holdings, and business affiliations within the United States, and the alien's family, property, and business ties in the foreign country. See Moin, 335 F.3d at 419. An applicant's desire to maintain his permanent resident status, without more, is insufficient; the alien's intent must be supported by his actions. See Singh, 113 F.3d at 1514-15.
Where the absence of the LPR alien, is less than one year, returning permanent residents, are permitted to reenter with their I-551 (Green Card), after “temporary absences”, with the intent to resume their “unrelinquished lawful permanent residence“, as evidenced by the actions of the alien in support of this intent. Where an applicant for admission has a colorable claim to returning resident status, the burden is on the Service to show that the applicant should be deprived of his or her status as a lawful permanent resident. Matter of Salazar, 17 I. & N. Dec. 167 (BIA 1979); Matter of Kane.
Written by:Mark Carmel