Residency Requirements for Naturalization

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What are the residency requirements for naturalization?

In order to meet the residency requirement for naturalization, an applicant must maintain documents to show that the U.S. is his “principal, actual dwelling place.” Specifically, an individual must show that he or she has “resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years…” INA 316(a). Additionally, the term “residence” is defined as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact…” INA 101(a)(33). Courts have stated that continuous residence does not require continuous physical presence and that short trips outside the U.S. are insufficient to establish a break in continuous residence. Matter of Jalil, 19 I&N Dec. 679, 680 (BIA 1988).

The court in Jalil involved an individual who worked and cared for the person’s family outside the U.S. and was ultimately determined to have broken their continuous residence. The rule stated in Jalil is that it “is the nature of the circumstances of the departures which determines an interruption of continuous residence, not the number or duration of departures from the United States.” Jalil, at 679.

The regulations also have a non-exhaustive list of factors that can show that an individual has not disrupted their “residence,” including if, A) The applicant did not terminate his or her employment in the United States; B) The applicant’s immediate family remained in the United States; C) The applicant retained full access to his or her United States abode; or D) The applicant did not obtain employment while abroad. 8 C.F.R. § 316.5(c)(1)(i).

In another case, Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007) a court found that an individual was able to show continuous residence in the U.S. from the date of filing her naturalization application on May 8, 2003, despite having departed the U.S. to attend the University of Alberta in Canada, remaining out of the U.S. for periods extending as long as six months, but not more than a year, and even obtaining permanent residence in Canada on October 24, 2006. The court looked to the regulatory factors at 8 C.F.R. § 316.5(c)(1)(i) and found that continuous residence had not been interrupted since the individual had extended family that still lived in the U.S., maintained a home in the U.S., and had not taken a job in Canada. Li, at 132.

As a strategy to increase the chances of success for an applicant’s naturalization application, an applicant should therefore seek to maintain as much proof as possible that he or she is maintaining the U.S. as his or her “residence,” as that term is defined. For example, working for a U.S. employer, and not obtaining a job abroad would be additional evidence of maintaining one’s U.S. residence for naturalization purposes. 8 CFR 316.5(c)(1)(i)(A), (D). Additionally, maintaining a home in the U.S. is often key to establishing that one has maintained their U.S. residence. 8 CFR 316.5(c)(1)(i)(C).

Additionally, not incurring any breaks in U.S. residency greater than six months can also be a positive factor since such long departures also result in a presumption that residence has been broken. Nevertheless, departures of less than six months can still result in a finding of disruption of continuous residence if an Immigration Officer makes a finding that the U.S. is in fact no longer the applicant’s domicile, or his place of general abode. 12 USCIS Policy Manual, D.3. Also see, INA 101(a)(33) (stating that “the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”). As a practical matter, the N-400 application has an applicant list all of the departures from the U.S. for the last 5 years. If an individual only has entries into the U.S. for a few days every six months, the application would probably face difficulties. Additionally, the applicant would be required to update this information at the time of his or her interview, listing any additional departures since filing. The information would again be updated at the time of the Oath Ceremony, listing any further departures since the time of the interview.

The following are examples of documents that may help establish maintenance of a U.S. residence:

Evidence to Demonstrate Ties to United States

  • Home ownership/rent;
  • Continuing U.S.-based bank accounts;
  • Frequent visits to the United States;
  • Family members remaining in the United States;
  • Business/employment connections to the United States;
  • Driver’s license; and
  • Pension accounts.

Evidence to Demonstrate Reasons for Stay Abroad

  • Affidavits/statements indicating reasons for short temporary stay abroad;
  • Physical evidence (medical/legal records, etc.);
  • Letters, etc., demonstrating attempts to resolve issue requiring prolonged stay abroad;
  • School records (demonstrating limited study abroad); and
  • Employment letter (especially if company is a U.S. company).

What is a reentry permit?

A lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States is required to present a document listed in the regulations at 8 CFR 211.1(a). One of the permissible documents listed is a valid, unexpired Form I-551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year. 8 CFR 211.1(a)(2). Therefore, if a Lawful Permanent Resident will be outside of the U.S. for one year or more, the Form I-551, Permanent Resident Card, by itself, would not meet the regulatory requirements of a document that is permissible to present upon return.

However, the regulations also state that a reentry permit issued to a permanent resident shall be valid for 2 years from the date of issuance. 8 CFR 223.3(a)(1). Therefore, a Lawful Permanent Resident that anticipates being outside of the U.S. for more than one year should apply for a reentry permit.

Importantly, if the applicant files for a reentry permit, he or she must be in the U.S. at the time of application. 8 CFR 223.2(b)(1). Additionally, he or she would also be required to appear at a biometric appointment to have his or her photograph and fingerprints taken. Generally, the appointment can be rescheduled if for some reason the applicant and their family are unable to make the first appointment.

What is the test for if an individual has abandoned their Lawful Permanent Resident status?

Courts have held that the issue of abandonment turns on the issue of if the individual can show that he or she is “returning to an unrelinquished lawful permanent residence after a temporary visit abroad.” Matter of Huang, 19 I. N. Dec. 749, 753 (BIA 1988). Additionally, a trip will be considered a “temporary visit abroad” where (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003). If, as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

How does a reentry permit affect “residency” for naturalization or for claims of abandonment?

A reentry permit can also help show that the applicant and their family have not abandoned their lawful permanent resident status since it is an official registered intent to return to the U.S. within a short period.[1] It should also be noted that, except for intent, many of the factors used to determine abandonment of residency or an interruption of continuous residence for naturalization purposes are the same.[2] A reentry permit should therefore be helpful in rebutting any claim that the applicant and their family have either abandoned their residence or disrupted their “continuous residence.”

What if I have stayed outside the United States for over one year and do not have a reentry permit?

If a Lawful Permanent resident has stayed outside the United States for over one year and does not have a reentry permit, or if he or she obtained a reentry permit but has stayed outside the United States beyond the two-year validity period of the permit, the individual may need to obtain a special immigrant visa (SB-1) at a U.S. consulate.

What is an application to preserve residency for naturalization (Form N-470)?

Another option might be to file an application to preserve residency for naturalization (Form N-470), which can preserve residency for individuals who, for example, work for a U.S. firm engaged in the development of foreign trade and commerce. INA §§316(b) — (c). Such an application requires showing that the applicant works for a company that is 1) at least 51% U.S. owned, and 2) the company is at least in part engaged in development of foreign trade and commerce overseas. Generally, the phrase “development of foreign trade” has been broadly interpreted, and may be an option if the applicant’s company sells service or products outside the U.S. Such an application also has a requirement to have physical presence and residence in the U.S. for an uninterrupted period of at least one year, after obtaining lawful permanent residence.

Ready to let us help you?

Importantly, individuals should be able to explain the reason for any short temporary trips abroad to either Customs and Border Protection or to an Immigration Service officer during a naturalization interview. Do you have an issue with preserving residency for naturalization purposes? Our knowledgeable attorneys are ready to help. Please feel free to schedule a consultation via email info@gzimmigration.com or give us a call at (713) 781-0071.

LAW

INA 316

(a) [1427(a)] Residence. No person, except as otherwise provided in this title, shall be naturalized, unless such applicant,

316(a)(1) [1427(a)(1)] immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months,

316(a)(2) [1427(a)(2)] has resided continuously within the United States from the date of the application up to the time of admission to citizenship,

316(a)(3) [1427(a)(3)] during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

316(b) [1427(b)] Absences.–Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a), shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

Absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence, except that in the case of a person who has been physically present and residing in the United States, after being lawfully admitted for permanent residence for an uninterrupted period of at least one year, and who thereafter, 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, no period of absence from the United States shall break the continuity of residence if–

316(b)(1) [1427(b)(1)] prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence from the United States, the person has established to the satisfaction of the Attorney General that his absence from the United States for such period is to be on behalf of such Government, or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation, or to be 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

316(b)(2) [1427(b)(2)] 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.

316(c) [1427(c)] Physical presence.–The granting of the benefits of subsection (b) of this section shall not relieve the applicant from the requirement of physical presence within the United States for the period specified in subsection (a) of this section, except in the case of those persons who are employed by, or under contract with, the Government of the United States. In the case of a person employed by or under contract with Central Intelligence Agency, the requirement in subsection (b) of an uninterrupted period of at least one year of physical presence in the United States may be complied with by such person at any time prior to filing an application for naturalization.

INA § 101(a)(33)

The term “residence” means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.

INA 320(a)

A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

320(a)(1) [1431(a)(1)] At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

320(a)(2) [1431(a)(2)] The child is under the age of eighteen years.

320(a)(3) [1431(a)(3)] The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

8 CFR 316.5

316.5(a) General. Unless otherwise specified, for purposes of this chapter, including §316.2(a)(3), (a)(5), and (a)(6), an alien’s residence is the same as that alien’s domicile, or principal actual dwelling place, without regard to the alien’s intent, and the duration of an alien’s residence in a particular location is measured from the moment the alien first establishes residence in that location.

…

316.5(c) Disruption of continuity of residence.

316.5(c)(1) Absence from the United States.

316.5(c)(1)(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under §316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:

316.5(c)(1)(i)(A) The applicant did not terminate his or her employment in the United States;

316.5(c)(1)(i)(B) The applicant’s immediate family remained in the United States;

316.5(c)(1)(i)(C) The applicant retained full access to his or her United States abode; or

316.5(c)(1)(i)(D) The applicant did not obtain employment while abroad.

316.5(c)(1)(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with §316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under §316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant’s residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant’s return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant’s return to the United States to resume permanent residence.

316.5(c)(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.

8 CFR § 223.1

  • Reentry permit. A reentry permit allows a permanent resident to apply for admission to the United States upon return from abroad during the period of the permit’s validity without the necessity of obtaining a returning resident visa.

8 CFR 211.1(a) General.

Except as provided in paragraph (b)(1) of this section, each arriving alien applying for admission (or boarding the vessel or aircraft on which he or she arrives) into the United States for lawful permanent residence, or as a lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States, shall present one of the following: …

211.1(a)(2) A valid, unexpired Form I-551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year, or in the case of a crewmember regularly serving on board a vessel or aircraft of United States registry seeking readmission after any temporary absence connected with his or her duties as a crewman;

USCIS Policy Manual / Vol 12 – Citizenship & Naturalization / Part D – General Naturalization Requirements / Ch 3 – Continuous Residence

An officer may also review whether an applicant with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements.

INA 101(a)(13)(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

…

8 CFR 223.3

(a) Validity.

223.3(a)(1) Reentry permit. Except as provided in §223.2(c)(2), a reentry permit issued to a permanent resident shall be valid for 2 years from the date of issuance. A reentry permit issued to a conditional permanent resident shall be valid for 2 years from the date of issuance, or to the date the conditional permanent resident must apply for removal of the conditions on his or her status, whichever comes first.

…

(d) Effect on admissibility.

(1) Reentry permit. A permanent resident or conditional permanent resident in possession of a valid reentry permit who is otherwise admissible shall not be deemed to have abandoned status based solely on the duration of an absence or absences while the permit is valid.

Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003)

Finding that temporary visits are “not defined in terms of elapsed time alone,” and that “a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.”

8 CFR 211.1(a) General.

Except as provided in paragraph (b)(1) of this section, each arriving alien applying for admission (or boarding the vessel or aircraft on which he or she arrives) into the United States for lawful permanent residence, or as a lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States, shall present one of the following:

(1) A valid, unexpired immigrant visa;

(2) A valid, unexpired Form I-551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year, or in the case of a crewmember regularly serving on board a vessel or aircraft of United States registry seeking readmission after any temporary absence connected with his or her duties as a crewman;

(3) A valid, unexpired Form I-327, Permit to Reenter the United States;

….

CBP’s Inspector’s Field Manual

Ch. 13.1 Inspection of Returning Lawful Permanent Residents (LPRs).

The primary inspector shall admit a resident alien returning to an unrelinquished domicile, if not otherwise inadmissible under section 212(a), upon presentation of an unexpired Permanent Resident Card (Form I-551), a reentry permit, … The question of whether or not a returning resident is seeking admission as defined in section 101(a)(13)(C) of the Act or has relinquished his or her domicile is a complex one, and is discussed in Chapter 13.4

…

An LPR who has been outside the United States for more than one year (two, if presenting a reentry permit), may have abandoned residence. Other indicators of possible abandonment of residence are employment abroad, immediate family members who are not permanent residents, arrival on a charter flight where most passengers are non-residents with return passage, lack of a fixed address in the U.S., or frequent prolonged absences from the United States. In questionable cases, it is appropriate to ask for other documentation to substantiate residence, such as driver’s licenses and employer identification cards.

13.4 Question of Meaningful Departure.

Prior to April 1, 1997, if a lawful permanent resident was believed to be inadmissible, you had to first make a determination whether his or her absence was “meaningfully interruptive” of permanent residence. This topic is the focus of a key court decision, Rosenberg vs. Fleuti, 374 U.S. 449 (1963), as well as Matter of Kane, 15 I&N Dec. 258 (BIA 1975) and Matter of Montero, 14 I&N Dec. 399 (BIA 1973). The IIRIRA amended section 101(a)(13) of the Act to codify into statute several of the issues addressed in Fleuti by defining the terms “admission” and “admitted”. A lawful permanent resident is NOT considered to be seeking admission unless the alien:

    • has abandoned or relinquished that status;
    • has been absent continuously for more than 180 days;
    • has engaged in illegal activity after departing the U.S.;
    • has departed under legal process seeking removal;
    • has committed certain criminal offenses;
    • is attempting entry without inspection; or
    • has entered the U.S. without authorization by an immigration officer.

If you believe a lawful permanent resident may be inadmissible or no longer entitled to lawful permanent resident status, you must first determine whether the alien is seeking admission within the meaning of section 101(a)(13)(C). If you determine the returning resident is seeking admission, you should refer the alien for removal proceedings under section 240 of the Act as an alien inadmissible under section 212(a) of the Act. If you determine that the alien is not seeking admission, but may be deportable under section 237 of the Act, you may initiate removal proceedings under section 240 of the Act, charging the alien as deportable. Procedures for preparing for removal hearings and processing inadmissible LPRs are discussed in Chapters 17.6 and 17.10. This subject, especially issues involving possible abandonment or relinquishment of status, is a complex one, and may be resolved by the immigration judge during removal proceedings.

13.5 Returning Residents with SB-1 Visas. (Revised IN99-11)

A returning resident who has been abroad for more than one year may be issued an SB-1 visa by an American consular officer if the alien’s stay abroad was not an abandonment of residence and the alien fully intended to return to the United States. The inspecting officer should review the facts surrounding the departure and reasons for the time spent abroad. If the officer is convinced the alien is indeed returning to his or her residence, the inspection should be concluded.

9 Foreign Affairs Manual (FAM) 42.22 N1 Application for and Consular Adjudication of Returning Resident (SB) Status (CT:VISA-1557; 09-30-2010)

  1. Lawful permanent resident (LPR) aliens who are unable to return to the United States within the travel validity of their Form I-551, Permanent Resident Card, or Reentry permit may apply at a U.S. Embassy or Consulate for a special immigrant Returning Resident (SB-1) visa.
  2. An applicant seeking a special immigrant Returning Resident (SB-1) visa must complete Form DS-117, Application to Determine Returning Resident Status.
  3. The applicant should file Form DS-117 and supporting documentation at the post in the consular district in which he or she currently resides. You may not deny an applicant processing at post solely because your post does not process immigrant visas (IV). However, mission consular management may develop specific processing policies where circumstances would prevent effective evaluation and adjudication of the application at certain posts in country, in which case you may direct the applicant to another post in country that can handle the application. (See 9 FAM 42.61 Notes.)
  4. You must conduct a personal interview with the applicant to determine whether the application for Returning Resident status is approvable. A consular manager must review your adjudication and indicate their concurrence or non-concurrence on Form DS-117.
  5. If you determine that the applicant has provided sufficient justification and evidence in accordance with 9 FAM 42.22 N1.1 – N1.7, mark Form DS-117 as approved, open a case in Immigrant Visa Overseas (IVO), and scan in the approved Form DS-117 and supporting documents.
  6. If you adjudicated the application at a post where immigrant visas (IVs) are not processed, you must send approved Form DS-117 and the supporting documents to the IV-processing post for case creation and scanning.
  7. If the application is denied, you should enter an “L” Lookout in INK containing scanned copies of Form DS-117 and all supporting documents, and also enter notes supporting the denial decision.
  8. Paper copies of the denied Form DS-117 and all supporting documents may be destroyed after adjudication and scanning.
  9. Approved applicants will proceed with an application for an SB-1 IV. SB-1 interview appointment scheduling will vary based on post’s intake procedures. Each post should develop standard operating and intake procedures in order to handle SB-1 cases efficiently. SB-1 applicants are subject to the same application processing fees and security surcharges, documentary requirements, medical examination, and administrative processing that apply to all IV cases.

9 FAM 42.22 N1.1 Lawful Permanent Resident (LPR) Who Was Outside the United States for One Year or More (CT:VISA-1377; 11-24-2009)

A lawful permanent resident (LPR) who has remained outside the United States for more than one year may be eligible for returning resident status if the consular officer is satisfied that:

(1) The alien departed the United States with the intention of returning to an unrelinquished residence; and

(2) The alien’s stay abroad was for reasons beyond the alien’s control and for which the alien was not responsible.

9 FAM 42.22 N1.2 Evidence of Intent to Return to Unrelinquished Residence in the United States (CT:VISA-1377; 11-24-2009)

Department of State regulations specify the following evidence must be presented for an alien to qualify as a returning resident alien. The alien:

(1) Was a lawfully admitted permanent resident of the United States at the time of departure;

(2) At the time of departure, had the intention of returning to the United States;

(3) While residing abroad, did not abandon the intention to return to the United States; and

(4) Is returning from a temporary residence abroad; or if the stay was protracted, this was caused by reasons beyond the alien’s control.

9 FAM 42.22 N1.3 Documentary Evidence of Continued U.S. Residence (CT:VISA-1377; 11-24-2009)

Documentary evidence of an alien’s intent to maintain a U.S. residence may consist of, but is not limited to, the following:

(1) A driver’s license issued within the past year and reflecting the same address as that recorded on the Form I-94, Arrival and Departure Record;

(2) The name and address of the U.S. employer and evidence that a salary has been paid within a reasonable period of time;

(3) Evidence of children’s enrollment in a U.S. school;

(4) Evidence that extended visit abroad was caused by unforeseen circumstances;

(5) Evidence of a predetermined termination date; i.e., graduation, employment contract expiration, etc.;

(6) Evidence of having filed U.S. income tax return(s) for the past year(s); and

(7) Evidence of property ownership, whether real or personal, in the United States.

9 FAM 42.22 N1.4 Evidence Indicating Abandonment of Residence (CT:VISA-1377; 11-24-2009)

You should also take into account evidence that indicates abandonment of residence in the United States. Such evidence might consist of the following:

(1) Extended or frequent absences from the United States;

(2) Disposition of property or business affiliations in the United States;

(3) Family, property, or business ties abroad;

(4) Conduct while outside the United States such as, employment by a foreign employer, voting in foreign elections, running for political office in a foreign country, etc.; or

(5) Failure to file U.S. income tax returns.

9 FAM 42.22 N1.5 Defining Temporary (CT:VISA-1377; 11-24-2009)

The term “temporary” cannot be defined in terms of elapsed time alone.

The intent of the alien, when it can be determined, will control. In the Matter of Kane, the Board of Immigration Appeals has described some of the elements to be examined:

(1) Reason for Absence: Traveler should have a definite reason for traveling abroad temporarily;

(2) Termination Date: The visit abroad should be expected to terminate within a relatively short period, fixed by some early event; and

(3) Place of Home or Employment: The applicant must expect to return to the United States as an actual home or place of employment. He or she must possess the requisite intent to do so at the time of their departure, and maintain it during the course of their sojourn.

9 FAM 42.22 N1.10 Alien Employed Abroad by U.S. Employer (CT:VISA-1377; 11-24-2009)

In the absence of contrary evidence, an alien employed outside the United States by a U.S. employer would not likely be considered to have abandoned U.S. residence. Although an alien who lives and works in a foreign country, but merely returns to the United States for brief visits periodically may still be found to have abandoned LPR status. Annual visits to the United States are no guarantee that LPR status will be preserved.

9 FAM 42.22 N1.12 Lawful Permanent Resident (LPR) Students Studying Abroad

(CT:VISA-1377; 11-24-2009)

Several decisions by the DHS Administrative Appeals Office (AAO) relate to LPR students studying abroad. Students who wish to retain LPR status should present evidence of a definitive graduation date. Even prolonged absences from the United States may be considered temporary if the LPR can present evidence of a receipt of a degree within a definitive time. Consular officers should take into account whether students return to the United States at the end of each academic term, or whether they have family still living in the United States. Evidence of property ownership, or a bank account in the United States, may indicate the student intends to return to the United States upon completion of studies.

[1] But see, Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003) (Finding that temporary visits are “not defined in terms of elapsed time alone,” and that “a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.”).

[2] Compare Matter of Huang, 19 I&N Dec. 749, 753 (BIA 1988)(No abandonment if returning from a temporary visit abroad, which “cannot be defined in terms of elapsed time alone” and includes “examining the location of his family ties, property holdings, and job, and whether he intended to return to the United States as a place of employment or business or as an actual home.”); with Jalil, at 679 (Interruption of continuous residence not solely the “number or duration of departures from the United States” ); and 8 C.F.R. § 316.5(c)(1)(i)(Continuity of residence not disrupted if “(A) The applicant did not terminate his or her employment in the United States; (B) The applicant’s immediate family remained in the United States; (C) The applicant retained full access to his or her United States abode; or (D) The applicant did not obtain employment while abroad.)