As a Lawful Permanent Resident, how do I avoid abandoning my permanent resident status while I take care of my sick mother in Canada?
Question: I am a Canadian citizen and longtime Lawful Permanent Resident (LPR). I have lived and worked in Texas for more than fifteen years. Three years ago, my mother became ill and now requires full-time in-home care. As an only child, I have been responsible for her care, so I spend several months in Canada at one time taking care of my mother. I have never intended to abandon my permanent residency in Texas. As I mentioned earlier, my entire life is in Texas: my home and business, bank accounts, and other property. I even pay federal and state taxes.
On my last entry into the United States, I was told that due to my extended stay in Canada that I needed to apply for an I-131, Application for Travel Document. The officers at the border were very understanding about my situation, but explained to me that I would need the reentry document if I intended on continuing a similar travel pattern. The officers also stated that they would make a note on my record about the need to obtain a reentry permit. Do I really need to apply for a reentry permit?
Answer: Thank you for your question. Whether or not you require a reentry permit is based on the specific facts of your case. Please call my office to discuss in detail the amount of time you are spending in Canada taking care of your mother and your ties to the United States.
However, now that you are on Customs and Border Protection’s “radar,” it may be advisable to apply for a re-entry permit. My main concern is that at some point you will have to address this issue beyond giving CBP your word. I do not want this issue to escalate to the point of you being placed into immigration court proceedings, which could be protracted and unnecessarily expensive.
Below is some information about “abandonment” and “intent” as they relate to maintaining LPR status:
Intent to Keep U.S. Permanent Residency
If there is an absence of intent to live in the U.S. coupled with objective circumstances, LPRs can lose their status even if they visit the U.S. often. An LPR may have multiple residences, but U.S. residence must be the permanent one.
Absence of More Than One Year
If an LPR remains outside the U.S. for more than one year, regulations require the invalidation of your “green card,” 8 C.F.R. 211.1(a)(2), but DHS holds the position that you have also abandoned you residency.
Absence of less than one year
Residency may be deemed abandoned where a person lives and works abroad but visits U.S. every year.
Continuous Uninterrupted Intent
If the reason you leave the U.S. does not occur within a relatively short period of time, the visit will be considered temporary only if the alien has a continuous uninterrupted intention to return to the U.S. Criteria to determine continuous uninterrupted intention include family ties, property holdings, and business affiliations in the U.S. and foreign country.
No Abandonment: Khoshfahm v. Holder, 655 F.3d 1147 (9th Cir. 2011) [DHS failed to prove intent to abandon residency by child from Iran who was out of U.S. for 6 years due to father’s heart condition and September 11].
Abandonment: Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003) [Court upheld abandonment where LPR made several trips to U.S. with a stay of approximately 6 months total within the last 54 months with a reentry permit]; Aleem v. Perryman, 114 F.3d 672 (7th Cir. 1997) [Court upheld abandonment even where person paid U.S. taxes, maintained association memberships, and had a U.S citizen child].
Reentry Permit (Form I-131)
A Reentry Permit allows a Permanent Resident to apply for admission to the United States upon returning from abroad during the permit’s validity. Possession of reentry permit does not prevent DHS from inquiring as to whether the holder abandoned his residency; it simply prevents the DHS from relying solely on the duration of the absence as a basis to determine abandonment. 8 C.F.R. § 223.3(d)(1). However, a reentry permit does not bar DHS from refusing admission to the holder and placing him in removal proceedings.
Please call my office to discuss your case in greater detail. Best of luck.