Queens, NY asked in Immigration Law for New York

Q: Greetings! I’d like to know if I can get in trouble for going out of the country being a LPR.

I’ve been a LPR (10 year green card) since Dec 2020. In 2022 I’ve been out of the country for 164 days as of now (multiple entries from Brazil - my home country). I just got back last week, so technically I’d still have 14 days left for this year, totaling 179 days abroad for the current year. However, I’m unsure if I go back for Christmas, around the 18th and stay until Jan 20th 2023 (my birthday), if I’d get in trouble when coming back to US. I’m confused on whether the “clock” resets starting on Jan 1st 2023 or not. The reason why I’ve been out of the country for so many days, is due to the fact that my husband (US citizen) works for an airline here in the US, so there’s little to no cost to travel, and my immediate family lives abroad, so I’ve been going there to visit only.

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2 Lawyer Answers
Agnes Jury
Agnes Jury
  • Immigration Law Lawyer
  • Traverse City, MI

A: It is impossible to tell if you will be permitted to return in January after a short visit to Brazil because it is up to the officer at the Border whether to let you in AND for how long REGARDLESS of the "180 day clock" (reset or not). Each time you cross the border on an non-immigrant visa you have to be able to show that you have sufficient ties to your home country to compel you to return home after your temporary travel to the US. The longer you are absent from your home country, the less likely you are able to convince the officer that you have compelling reasons to return home. Right now, based on what you stated in your question, it sounds like you are starting to "reside" in the US. Why do you not file to become a permanent resident of the US and eventuallly to become a citizen (so you can travel without time constraints as a US citizen)? Best wishes!

Daniel Michael Luisi
Daniel Michael Luisi
  • Licensed in New York

A: I think this is a duplicate question. I am copying my answer above:

There is no set period of time abroad that will trigger abandonment, but LPRs are treated as seeking re-admission if they have been absent from the United States for a continuous period of longer than 180 days. INA § 101(a)(13)(C)(ii). Continuous absence of more than 180 may trigger scrutiny, but many shorter absences during a calendar year can also raise questions and a CBP officer has discretion to question you on your activities abroad if they choose to do so.

More than 365 days abroad creates a presumption of abandonment and you will have to prove you have not abandoned your LPR status to the CBP officer to avoid being placed in removal proceedings.

There are a number of factors, however, that a CBP officer can use to determine abandonment of LPR status, besides length of absence, including: the LPR’s intent when leaving the country; any employment abroad; U.S. business affiliations; ownership of residence or property holdings in the United States; payment of U.S. taxes; length of time in the United States; community ties developed before the departure; maintenance of a bank account, club memberships, or other social ties within the U.S.; and U.S. residence of other immediate family members during this period.

Therefore, evidence that the LPR has abandoned residency can include the following: extended or frequent absences from the United States; disposing of property or terminating a job in the United States before leaving; family, property, or business ties all located abroad; certain conduct while outside the United States, such as working for a foreign employer, voting in a foreign election, or running for political office in a foreign country; and failure to file U.S. income tax returns. 9 FAM 422.22 N. Filing taxes as a nonresident alien is tantamount to an admission of abandonment.

The most conservative strategy to avoid abandonment (and to meet the “continuous residence” requirement for for naturalization, if you wish) is to keep the U.S. as your main home by sleeping more nights in the U.S. than abroad during the calendar year and/or applying for a reentry permit before departing the U.S.

There is a 6-month rule, of sorts: INA § 101(a)(13)(C) says that LPRs returning from abroad don’t even count as applying to CBP for “admission” (i.e., CBP won’t question their qualifications to enter) if they meet the following requirements, among others: they have been abroad for under 180 days; and they have not abandoned LPR status by making a trip abroad that isn’t “temporary.” The question is the meaning the word “temporary,” and the CBP officer has discretion to question you about this along the lines of what I stated above.

If you are warned by a CBP officer regarding danger of abandonment, you should definitely apply for a reentry permit before traveling again.

This answer is provided as general information, not legal advice, and forms no attorney client relationship. For a consultation specific to your situation an attorney would have to interview you and examine you particular circumstances in detail.

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