HOW TO PRESERVE US RESIDENCY DURING EXTENDED ABSENCES WITH A RE-ENTRY PERMIT
I am regularly asked by my clients who are LPR’s (Lawful Permanent Residents) , how their residency status would be affected if they had to leave the US for a year or longer due to their employment, family or health issues and what they would need to do to protect their permanent residency status. This article will discuss those issues and recommendations to best protect permanent residency status.
First of all, being a lawful permanent resident means you have to physically reside in the USA. You are allowed to travel outside of the US, but need to be aware that residency can be jeopardized in certain situations for absences for six months or longer.
An extended absence from the US for a period of greater than six months but less than a year creates a “rebuttable presumption” that you are intending to abandon your US residency. This means that you will need to rebut this presumption by providing evidence that you are maintaining a physical US residence, paying your taxes, and additional documentation to show that you have not abandoned your US residence. Also, your US permanent residency may be considered abandoned for absences shorter than one year if you take up residence in another country.
If you are outside of the US for a period of one year or longer then your Permanent Residence card becomes technically invalid. Not only will it affect the continuous residency requirements in applying for US citizenship, it can result in denial of re-entry into the US unless the LPR holds a valid re-entry permit.
It is strongly recommended that if you anticipate an extended absence from the US for a year or longer, then be proactive and apply for a re-entry permit prior to leaving the US.
We will now discuss the application process for obtaining a re-entry permit. You will need to complete the USCIS form I-131, submit the documentation to substantiate your request, and pay the filing fee of $360.00. Depending on where you live , you will need to file your application with the designated USCIS service center that has jurisdiction over your state. You need to be physically present in the US when you file this application as it is a requirement.
Following the receipt of the filing, the USCIS will mail you a Notice of Action within 30 days. We recommend that you strictly use a US address either your attorney, family or a friend. Usually, the next correspondence you will receive is an appointment notice for your biometrics. This appointment will be only for the purpose of obtaining your fingerprints, and there is no interview. If you have left the US after filing your I-130, you can return for your biometrics appointment. We recommend not trying to reschedule the biometrics appointment as failure to complete the biometrics within 120 days will result in denial of your application.
After the biometrics have been taken, then the USCIS will review the application and determine whether you submitted appropriate documentation to justify the application or whether additional documentation is required. If there is an issue, the USCIS will issue a yellow letter called a Request for Evidence. This letter will details what additional information or documentation is needed by the service. Usually you will be given two or three months to respond. If you do not respond within the time specified or fail to produce the requested evidence, the application will be denied.
Following the biometrics, If everything was deemed sufficient without a request for evidence, you should expect a decision within 8-12 weeks. If approved, you can designate which US consulate, US embassy or foreign USCIS office, you would like the re-entry card sent to by the USCIS.
The re-entry card is valid for a period of two years, and can be renewed again for an additional two years. You will need to carry it with you each time you re-enter the US during the period of your extended absence or your eventual return to the US after a year.
Disclaimer: This article is only intended as general guidance and is not deemed to be any form of legal advice by Robert A. Pascal, P.A. Any reader or interested applicant should consult with an experienced immigration attorney before attempting to file this document on their own as each case and facts are different.