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 U.S. Citizenship & Immigration Services(USCIS). Once a person obtains a “green card” and becomes a permanent resident, many of these hassles end. However, there are still some important issues to keep in mind after becoming a Permanent Resident, especially if the plan is to one day become a naturalized citizen of the United States. The permanent resident who has an eye toward naturalization must be careful, first and foremost, that his or her behavior does not indicate an intent to “abandon residence.”
Abandonment of residence is a complicated concept with a long history of construction through case law. According to case law, the Service's determination of whether someone has abandoned residence is based on a subjective determination of whether or not the alien intended to abandon his or her permanent resident status. This subjective determination is based on the following criteria: (1) whether the alien's purpose in departing the U.S. is for a definite reason; (2) whether the termination date for the alien's visit abroad was “fixed by some early event;” and (3) whether the alien intends to return to 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 the United States based on his job as an Aeronautical Engineer, receives a job offer back in Germany that will pay him a higher wage. He and his family sell their home in the U.S. and take up residence in Germany. He signs a contract agreeing to work for his new employer, XYZ for an initial period of five years, with the possibility of continuing to work for the company indefinitely. He then stays with XYZ for those five years without returning to the U.S. If one puts this scenario to the test of the criteria outlined above, it is clear that the alien abandoned his residence in the U.S. While he does meet the first criteria of leaving the U.S. for a definite reason, he does not meet the following 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 indication that he intends to return to the U.S. at any point for employment or residence: he has sold his home and quit his job.
Few situations are as clear-cut as the one described above. Now imagine that the German Engineer described above loses his job in the U.S. due to a company lay-off. He looks for a new job for a couple of months and is unable to find something in his field. As a last resort, he puts in applications at companies back in Germany, and eventually lands a job there. He is forced to sell his home in the U.S., because he cannot afford to maintain two residences. He rents a house in Germany, but he continues to look for a job in the U.S. while he and his wife and teenage son live and work in Germany. After five months2 of living in Germany, he gets a job interview at a new company in California, for which he flies back to the States. He brings his family with him and decides to make a vacation of it, staying in California for two weeks. He gets the job in California, but the new employer allows him to finish out the year with his employer abroad. 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. They then 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 criteria described above, it is clear that the alien did not abandon his residence. First, he left the United States for the specific purpose of finding a job, since he could not find one in the United States. Second, the termination of his stay abroad was fixed by the early event of his finding a new job in the U.S. He continually placed applications at U.S. companies for the duration of his stay in Germany, until he eventually found a job. And third, as evidenced by his eventual move back to the States to take up employment, he intended to return to the States to live and work.
The important thing to keep in mind is that while it is best to reside continually in the United States as a Permanent Resident during the five years prior to applying for naturalization, it is not always feasible to be in the U.S. during those years. Certain exceptions have therefore been made in order to match immigration requirements with the realities of people's lives. But an alien must make clear with his or her behavior that his/her intent is to maintain Permanent Resident status in the U.S. during those five years. Otherwise the USCIS may determine that the alien is ineligible for naturalization. If at any point it becomes necessary for a Permanent Resident to sell his/her home and travel abroad, even temporarily, he or she should consult with a good immigration attorney to determine the consequences of his/her actions on any future naturalization application.
1 See Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975), Interim Decision #2371.
2It is important to note that in order to be eligible for naturalization, a permanent resident cannot have been out of the United States for a period of more than 180 days, or 6 months, during the five years prior to filing a naturalization application. While this is a separate issue from Abandonment of Residence, it is a vital issue.