Abandonment of Residence:Can You Live Outside the United States and Still Maintain your Permanent Resident Status?

The process of becoming a permanent resident of the United States is a lengthy one,involving a myriad bureaucratic red tape, extended processing times, and, for some,worrisome interviews with the Bureau of Citizenship and Immigration Services (BCIS).Once a person obtains a “green card” and becomes a permanent resident, many of thesehassles end. However, there are still some important issues to keep in mind afterbecoming a Permanent Resident, especially if the plan is to one day become a naturalizedcitizen of the United States. The permanent resident who has an eye towardnaturalization must be careful, first and foremost, that his or her behavior does notindicate an intent to “abandon residence.”

Abandonment of residence is a complicated concept with a long history of constructionthrough case law. According to case law, the Service’s determination of whethersomeone has abandoned residence is based on a subjective determination of whether ornot the alien intended to abandon his or her permanent resident status. This subjectivedetermination is based on the following criteria: (1) whether the alien’s purpose indeparting the U.S. is for a definite reason; (2) whether the termination date for the alien’svisit abroad was “fixed by some early event;” and (3) whether the alien intends to returnto the U.S. for employment or residence1.

There are some obvious examples of what would constitute abandonment of residence.Consider a German national who, shortly after obtaining Permanent Residence in theUnited States based on his job as an Aeronautical Engineer, receives a job offer back inGermany that will pay him a higher wage. He and his family sell their home in the U.S.and take up residence in Würzburg, Germany. He signs a contract agreeing to work forhis new employer, XYZ for an initial period of five years, with the possibility ofcontinuing to work for the company indefinitely. He then stays with XYZ for those fiveyears without returning to the U.S. If one puts this scenario to the test of the criteriaoutlined above, it is clear that the alien abandoned his residence in the U.S. While hedoes meet the first criteria of leaving the U.S. for a definite reason, he does not meet thefollowing two criteria. The termination of his stay abroad is not fixed by an early event:he has guaranteed his foreign employer that he will remain abroad for at least five years,and he may continue to work there indefinitely. And the alien has made no indicationthat he intends to return to the U.S. at any point for employment or residence: he has soldhis home and quit his job.

1 See Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975),

Interim Decision #2371. 1Few situations are as clear-cut as the one described above. Now imagine that the GermanEngineer described above loses his job in the U.S. due to a company lay-off. He looksfor a new job for a couple of months and is unable to find something in his field. As alast resort, he puts in applications at companies back in Germany, and eventually lands ajob in Würzburg. He is forced to sell his home in the U.S., because he cannot afford tomaintain two residences. He rents a house in Germany, but he continues to look for a jobin the U.S. while he and his wife and teenage son live and work in Germany. After fivemonths2 of living in Germany, he gets a job interview at a new company in SanFrancisco, California, for which he flies back to the States. He brings his family with himand decides to make a vacation of it, staying in California for two weeks. He gets the jobin California, but the new employer allows him to finish out the year with his employerabroad. Meanwhile, the family makes several short trips to the U.S. to look for homes.They settle on a home in the San Francisco area, for which they sign a mortgage. Theythen return to the U.S. using their green cards, and settle into life in San Francisco.

This situation is more complicated. However, when it is put to the test of the criteriadescribed above, it is clear that the alien did not abandon his residence. First, he left theUnited States for the specific purpose of finding a job, since he could not find one in theUnited States. Second, the termination of his stay abroad was fixed by the early event ofhis finding a new job in the U.S. He continually placed applications at U.S. companiesfor the duration of his stay in Germany, until he eventually found a job. And third, asevidenced by his eventual move back to the States to take up employment, he intended toreturn to the States to live and work.

The important thing to keep in mind is that while it is best to reside continually in theUnited States as a Permanent Resident during the five years prior to applying fornaturalization, it is not always feasible to be in the U.S. during those years. Certainexceptions have therefore been made in order to match immigration requirements withthe realities of people’s lives. But an alien must make clear with his or her behavior thathis/her intent is to maintain Permanent Resident status in the U.S. during those five years.Otherwise the BCIS may determine that the alien is ineligible for naturalization. If at anypoint it becomes necessary for a Permanent Resident to sell his/her home and travelabroad, even temporarily, he or she should consult with a good immigration attorney todetermine the consequences of his/her actions on any future naturalization application.

BCIS Developing Uniform Citizenship Test

Naturalization interviews include a routine U.S. history test that, despite being routine, isanything but standardized. BCIS is currently working with a professional test developingagency to create a standardized citizenship test. The new test is being piloted at BCISoffices in Los Angeles, Sacramento, San Antonio, Atlanta, and Newark.

2 It is important to note that in order to be eligible for naturalization, a permanent resident cannot have beenout of the United States for a period of more than 180 days, or 6 months, during the five years prior tofiling a naturalization application. While this is a separate issue from Abandonment of Residence, it is avital issue.

Proposed Rule Would Allow Nonimmigrants to Obtain Social Security Numbers In Order to Obtain Driver’s Licenses

Since September 11, 2001, nonimmigrants in some states have had trouble obtainingdriver’s licenses because the Social Security Administration has stopped routine issuanceof Social Security Numbers (SSN) to nonimmigrants for non-work purposes. A proposedrule that was placed in the Federal Register on March 26, 2003 would allow the SocialSecurity Administration to issue SSN’s for “valid nonwork purposes3.” The rule defines“valid nonwork purposes” as those instances “when a Federal statute or regulationrequires an alien to have an SSN in order to receive a federally-funded benefit to whichthe alien has established entitlement, or when a State or local law requires an alien who islegally in the U.S. to have an SSN in order to receive general public assistance benefits... to which the alien has established entitlement.” In other words, if the rule becomesfinal, then an alien who lives in a state that requires him to have a Social SecurityNumber in order to obtain a driver’s license, or any other public benefit, would be able toapply for a SSN based solely on his or her entitlement to that benefit.

Some L-2 EAD Applications Filed at the Nebraska Service Center May Experience Delays

The Nebraska Service Center has been mistakenly sending applications for EmploymentAuthorization Documents for L-2 spouses along to the Missouri Service Center.Nebraska is correcting this error, however, it will slow down affected applications.

Consular Processing Vs. Adjustment of Status

There are two ways to become a Permanent Resident of the United States based onemployment: you can either adjust status or consular process. If you choose Adjustmentof Status, you may remain in the U.S. while your application is pending. If you chooseConsular Processing, you must travel to a U.S. Consulate in your country of citizenshipor your last country of residence abroad for a personal interview.

Consular Processing

If you choose Consular Processing, you will first have to file an I-140 Immigrant VisaPetition4 with the BCIS (formerly INS). Depending on which BCIS service center youfile through, and on what type of job you have, it is currently taking anywhere from 3months to a year to process an I-140 petition.5

Once the I-140 has been approved, the BCIS will forward notification of the approval tothe Department of State’s National Visa Center (NVC). Within 6-8 weeks of receiving

3 Proposed Rule. 68 Fed. Reg. 14563 (March 26, 2003).

4 Or an I-360 Immigrant Visa Petition, if you a Special Immigrant Religious Worker5 It is currently taking between

5 and 14 months for the various BCIS service centers to approve I-360Religious Worker petitions.

your I-140 approval notice from BCIS, you should receive a Fee Bill from the NVC for$335 per family member. Six to eight weeks after you pay the fee, NVC will send you apackage of forms and a list of required documents for Consular Processing. Once yougather and submit those forms and documents, your consulate appointment will bescheduled. If you are going through the consulate in Canada, then the NVC will scheduleyour appointment for you. If you are going through any other consulate, the NVC willforward your case to the consulate so that the consulate can schedule the appointment.Generally, once a consulate receives a file from NVC, it takes 2 months to schedule anappointment. The appointment usually falls approximately 4 weeks after the date onwhich you receive the appointment notice. The entire process can take as little as 7-8months, or as long as a year or more, if there are any complications 6.

During the entire pendancy of your I-140 and Consular Processing applications, you mustmaintain your nonimmigrant status. You should therefore make sure that you leaveyourself enough time on your nonimmigrant status to complete the entire ConsularProcessing application process.

Consular Processing is not necessarily a good option for people who would have to travelto countries in the Middle East for consulate interviews. Consular Processing would alsonot be a good idea for anyone who has overstayed his/her nonimmigrant status in the U.S.for more than six months at some point. Leaving the U.S. for a consulate interview (orfor any other purpose) would trigger any applicable three- or ten-year bars onreadmission to the United States.

Adjustment of Status

One of the major differences between Consular Processing and Adjustment of Status isthat when you adjust status, you do not have to maintain your nonimmigrant status whilethe application is pending. In lieu of your nonimmigrant status, you can apply forEmployment Authorization so that you can continue to work in the U.S., and you mayapply for Advance Parole if you need to travel outside of the United States while yourapplication is pending. In fact, unless you have H or L status, you will not be able toextend your nonimmigrant status once you have filed your Adjustment application, andyour nonimmigrant status will become invalid the moment you use your EmploymentAuthorization Document (EAD) or your Advance Parole (AP)7. You must maintainyour EAD while your Adjustment of Status application is pending, if you wish tocontinue working in the U.S. and traveling abroad.

If you choose to Adjust Status, you can file your I-140 petition concurrently with your I-485 Adjustment of Status application. BCIS will perform an initial review your I-140petition. If upon initial review, the I-140 seems readily approvable, then BCIS will issueany Employment Authorization Documents (EAD) or Advance Parole (AP) documentsapplied for with the I-485. If upon initial review, the I-140 requires an RFE (Request for

6 This is in addition to the processing time on the I-140.

7 If you are in H-1B or L-1 status, you can choose to either maintain your H or L status, or you can opt toapply for Employment Authorization and Advance Parole.

additional Evidence), then the EAD and AP may or may not be issued until the I-140 has been approved 8.

Depending on which service center you file your Adjustment of Status application at, itcould take anywhere from a year and a half to two and a half years for BCIS to adjudicateit. The processing times for Adjustment of Status and Consular Processing are fairlysimilar, but can vary depending on where you work, what type of job you have, and whatBCIS’s current processing times are.

One of the benefits of Adjusting Status is that if you lose your job while the application ispending, you can continue with the Adjustment of Status application, as long as youremployment ends 180+ days after you file the Adjustment of Status application. WithConsular Processing, if you lose your job while the application is pending, then yourConsular Processing application is automatically cancelled.

Another benefit of Adjustment of Status is that when your spouse, and your children overthe age of 14, can obtain employment authorization while the Adjustment of Statusapplication is pending. With Consular Processing, your spouse cannot work unless youare on L or E status, and your children cannot work at all, regardless of your status, untilyour Consular Processing application has been approved.

The information contained in this newsletter is for informational purposes only. It does not constitute legal advice.

8 BCIS has stated that I-140 RFE’s requesting “initial evidence” will freeze any EAD/AP applications,while RFE’s requesting “other evidence” will not freeze EAD/AP.