Protecting Your Greencard

You went through a rigorous process to get your greencard. It likely cost time, effort, money and frustration.

Protect that greencard! This page explains how.

If you plan to travel or work abroad, you can take steps both to safeguard your greencard and -- in certain limited cases -- preserve your eligibility to apply early for United States Citizenship.

Receiving Your Greencard

If you do not already have your Resident Alien or "green card" -- the plastic-laminated CIS Form I-551 -- you can expect to receive it shortly by mail. The U.S. Postal Service does not forward green cards sent to expired addresses.

REQUIREMENT TO LIVE IN THE US

A green card does not just permit you to live in the US.  It requires you to establish a primary residence in this country! Don't confuse the green card itself with the required underlying LPR (Lawful Permanent Resident) status that a green card represents!

Many greencard holders believe they can continue to live and work abroad "if they just travel to the US once per year." Not true! This flaw can be "papered over" and in practice is often ignored by CIS or CBP officials at US ports of entry. But if detected in "seconday inspection" or in a mistakenly filed naturalization application, it can result in green-card revocation, denied re-admission, placement in removal proceedings and denied naturalization.

If you fail to establish a primary US residence after green-card issuance, or if you later abandon it by spending too much time outside the US, the only sure cure may be to re-immigrate.

Study items 5 - 7 below before departing the US for any lengthy stay abroad!

Green Card Benefits

Your green card entitles you to valuable benefits, including:

• The right to live and work permanently in the United States
  
• The right to apply for induction into one of the U.S. armed services (Army, Air Force, Navy, Marines, Coast Guard)
  
• The right to petition for a foreign spouse and unmarried child to join you in the U.S.
  
• Limited waivers of deportation/removal grounds
  
• The accrual of time towards U.S. Citizenship
  
• The ability to leave and re-enter the United States for periods of less than six months without a re-entry permit.

1. Don't Confuse Your New LPR Status with USC (U.S. Citizenship) Status! And Take Special Care Never To Misrepresent Yourself as a USC

There are big differences between Lawful Permanent Residents (LPR's / Greencard Holders) and US Citzens (USC's). As a new LPR, it is vital for you to understand these differences.

U.S. Citizens can work in certain sensitive law-enforcement and other jobs that green card holders cannot.

Citizens can serve on court juries and can vote. LPR's cannot. This is important! Since 1996, LPR's who sign forms or simply check boxes on forms representing that they are U.S. citizens, or who vote in U.S. elections, can forfeit their LPR status if the misrepresentation is detected. There is no waiver available.

Don't fall into this trap, especially when renewing your state driver's license. In many states, driving license officials can now register U.S. citizens to vote. Most such officials know nothing about the difference between USC and LPR status. And they are totally unaware that registering an LPR to vote can result in loss of that resident's green card if detected by an immigration agency!

As an LPR, you can buy a firearm. But this cost one unsuspecting LPR his green card! The gun dealer -- not the LPR -- checked the box on the form indicating that the buyer was a U.S. Citizen. An immigration judge later ordered the LPR deported from the U.S., with permanent forfeiture of his green card! Don't place yourself in any situation where you can be accused of misrepresenting yourself to be a U.S. Citizen!

2. Don't Forget to File That Change of Address Form

As an LPR, you are still required to promptly report (within 10 days) any change in your home address. Do this by filling out and filing an AR-11 Form (Change of Address) with the DHS (Department of Homeland Security) in Washington, D.C. Retain legible photocopies for your files. (You may be called on to produce a photocopy for naturalization purposes or to defend your LPR status, particularly if charged with a deportable crime). You can download this form at no charge from the CIS website at www.uscis.gov.

3. Make Copies of Your Green Card

Safeguard your green card. Make a copy of it -- front and back -- and keep that copy in a safe place. If your green card is lost or stolen, you can secure a new one by completing a Form I-90 (Application to Replace Alien Registration Card), paying the current form fee, and traveling to the local CIS office with jurisdiction over your place of residence inside the U.S.

4. How to Qualify for U.S. Citizenship

To acquire U.S. Citizenship, you must reside continuously in the U.S. for five years (three years if living in marital union with a U.S. Citizen for that entire period). For at least one-half of that time, you must be physically present in the United States. No absence should exceed six months. You must also establish the absence of criminal arrests or convictions and payment of U.S. income taxes. You must be a person of "good moral character," attached to the Constitution and government of the United States. LPR males under age 25 must register for the Selective Service System. Failure to do so is a bar to naturalization until age 31. The registration forms with instructions are available at most U.S. post offices. See Naturalization Overview at this website.

5. Establish a Primary US Residence and Don't Abandon It!

Your green card can be withdrawn if you fail to establish or abandon a primary residence in the US. The best way to prevent this is to:

• Timely file and pay U.S. taxes. (Filing US tax returns from abroad, if you claim a lower tax rate as a nonresident, can undermine your claim to valid LPR status!)
• Own a home in the U.S., sign a long-term lease on a US. home, and actually live there.
• Maintain relationships with other close family members in the US
• Work, bank and invest in the United States
• Secure a state-issued driver’s license
• Join religious, professional, vocational, social or charitable organizations in the United States
• Prepare a will in the United States
• Secure a re-entry permit before absences outside the US. of more than six months
• Own and store personal belongings in the US if you do depart the U.S. for a prolonged period
• NOT own or rent a primary home in your native country or elsewhere (secondary or vacation homes are ok!)
• NOT spend prolonged periods of time (six months or more) in your home country or elsewhere without first securing a re-entry permit .

6. The Green Card As Travel Document Versus Preserving LPR Status

As a travel document, your green card is valid for six months (formerly one year!). Thus, one function of a green card is to serve as a "travel visa for immigrants." This is the source of the myth that you can "keep your green card by traveling to the US once per year." Don't believe it!

The green card as "travel document" is different from the requirement to establish and maintain the underlying LPR status that a green card primarily represents.

If you fail to maintain ties to the United States, you can forfeit your LPR status (and hence your green card) after an absence from this country of less than six months. Conversely, if you retain close ties to the United States, you can likely keep your green card despite an absence of more than six months.

Permanent residency in the U.S. is a question if intent, and intent is best evidenced by documenting your permanent ties to the United States. See the list of actions that evidence such permanent intent (or lack of permanent intent) in the preceding item five (5).

7. Lengthy Absences from the United States; Re-Entry Permit

If you plan to accept foreign employment or to remain outside the United States for longer than six months, you should complete a Form I-131 (Application for Travel Document) at least 30 days before your departure and send it to the CIS's Nebraska Service Center, together with the current form fee and documents from the list in the preceding item five (5) to prove your permanent ties to the United States. The travel document is called a re-entry permit. Once issued, that permit can be sent to a foreign address, if necessary. It will be valid initially for two years. You can apply for a second two-year re-entry permits thereafter -- but only from inside the U.S.. Thus, you can remain abroad on such permits for four years. While you can apply for a third two-year re-entry permit, the CIS is likely to deny it in the exercise of discretion.

A re-entry permit does not guarantee preservation of your LPR status if you fail to pay U.S. taxes or if you appear permanently to abandon your family or other ties to the U.S. while abroad. Again see the preceding item five. And remember: Re-entry permits may assist in preserving your residency for green-card purposes but not for naturalization purposes.

Important Tip: Permanently save your plane tickets and/or travel itineraries for every trip abroad, short or long.  Reason: You will be required to list all such absences from the U.S. if you later file an N-400 Application for Naturalization. You must do so not just for the five- or three-year "good moral character" naturalization period but also for the entire period of your LPR status!  Reconstructing such absences from memory (or based on faded, incomplete passport exit/entry stemps) can prove a massive headache.

8. Failure to Secure a Re-Entry Permit

If you neglect to secure a re-entry permit and remain outside the U.S. for more than six months, you will not necessarily lose your LPR status -- provided you can document those all-important continuing ties to the U.S. in the preceding item five. However, you are likely to face delays, inconvenience or worse (see below) in re-entering the United States. Your options after a six-month absence from the U.S. with no re-entry permit are to:

Obtain an SB-1 visa from a U.S. Consulate abroad. This will enable you to board the aircraft or ship to return to the United States as a "special immigrant." Don’t even think about this option without presenting extensive documentary proof of your continuing ties to the United States. Reason: Visa denial will be noted in your passport by the U.S. consular officer, making your re-entry into the U.S. on your "expired" green card all the more difficult!

Return to the United States with your "expired" green card. At the port of entry, you may be admitted without incident, notwithstanding your absence of more than six months. This is most likely if you can present strong documentation (tax returns, deeds, etc.) of your continuing ties to the United States. Alternatively, the ICE inspecting officer may lift your green card and: (1) admit you but require you to fill out an I-90 application for a new green card; (2) parole you into the U.S. for deferred inspection within 30 days at the local CIS office with jurisdiction over your place of residence in the U.S.; (3) parole you in for an admissibility hearing before an immigration judge; (4) detain you for an admissibility hearing before an immigration judge; or, worst of all (5) try to coerce you into forfeiting your LPR status in return for not detaining you and admitting you temporarily to the U.S. as a nonimmigrant (INS Form I-192).

Call us for help in pre-planning your re-entry to the United States if you find yourself absent more than six months without a re-entry permit!

9. General Rules of Preserving Residency for Naturalization Purposes

The preceding sections have discussed preserving residency in the U.S. for greencard purposes -- i.e., preventing loss of your greencard, once acquired. But what about preserving one's residency for naturalization purposes? The rules for this benefit are different.

As noted above, to acquire U.S. Citizenship, an LPR must establish, among other requirements:

• That he or she has been a "continuous resident" of the U.S. for at least five years before filing the N-400 Application for Naturalization (three years if the green card was acquired through marriage to a USC spouse and the applicant remains in marital union with that same spouse);
  
• That he or she has been physically present in the U.S. for at least half of the above naturalization periods immediately before filing that N-400 Appication.

The first of these two requirements -- continuous residence for naturalization purposes -- is subject to special rules. They are set forth in INA Section 316(b), 8 USC Section 1427(b). They may be summarized as follows:

• An absence from the U.S. of less than six months will not break the continuity of an LPR's residency for naturalization purposes.
  
• An absence of more than six months but less than one year creates a rebuttable presumption that the applicant has abandoned his U.S. residence for naturalization purposes. The presumption may be rebutted or overcome with factual proof that the applicant in fact did not abandon his or her residence in the U.S. during the period of absence abroad.
  
• An absence from the U.S. of one year or longer definitively breaks the continuity of one's residency for naturalization purposes, with limited exceptions. Those exceptions are discussed in the next section.

Thus, even if an LPR files an INS Form I-131 and secures a re-entry permit to preserve his or her residency for green-card purposes, (s)he will still be deemed to have abandoned his residency for naturalization purposes if (s)he remains abroad for more than one year --unless (s)he falls within one of the limited exceptions discussed in the ensuing section.

10. Preserving Residency for Naturalization Purposes if Absent For More Than One Year: Exceptions to the General Rules of Abandonment

Provided an LPR has been physically present in the U.S. for an uninterrupted period of one year after acquiring his green card, (s)he may still be able to preserve his or her residency for naturalization purposes if departing the U.S. for a year or longer, but only if (s)he "is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or is employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an American firm or corporation, or is employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence; and such person proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose. The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection shall also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person." INA Section 316(b)(1) and (2), 8 USC Section1427(b)(1) and (2).

Note that these exceptions to the general rule of continuous residency do not relieve the naturalization applicant of proving the second element of actual physical presence in the U.S. for half of the required residency period (i.e., half of the five-year or three-year naturalization period, as applicable).

On the bright side, if an LPR does not fall within this limited exception and is therefore deemed to have abandoned his residency for naturalization purposes, he does not have to wait the full five-year period (or three-year period for those acquiring green cards through USC spouses) to apply for naturalization after returning to the United States. He can file for naturalization four years and one day after resuming residency (two years and one day if the green card was acquired through a USC or LPR spouse). See 8 CFR (Code of Federal Regulations) Section 316.5(c)(1)(ii).

If you will be employed with a qualifying organization that enables you to preserve your residency for naturalization purposes despite a prospective absence of more than one year, secure a CIS form N-470 and file it with the Nebraska Service Center. The form must be filed before you have been absent from the U.S. for a continuous period of one year. 8 CFR Section 316.5(d)(1). Follow the instructions and document assembly instructions carefully. You will need two color photographs in proper CIS format and pay the current CIS filing fee.

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.