Should I give up my permanent residency if I live only a short time per year in the U.S.?

In my Consulta Migratoria® column this week, I answer a question from a reader who is thinking about giving up permanent residency.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the column:

I have been a permanent resident since 2010, but I have only lived in the United States for a few weeks each year, and twice I have asked for permission to leave. The last time I was in the country was in November 2017. I have never worked or paid taxes in the United States.

I have been out of the country to care for my 86-year-old mother who has health problems, depends on me and lives in Peru, where I am originally from. I am thinking of giving up my permanent residency because the last three times I have entered the U.S. customs officials question why I have been gone so long. I am currently in Peru and wish to return to the U.S. this month, but I am afraid that I will be questioned again, my residency will be taken away at the port of entry, and I will be deported.

What are my rights upon returning to the U.S.? Should I renounce permanent residency and apply for a tourist visa? What are my tax obligations if I renounce residency? -Mario G.

Mario, I admire your care for your mother, but it is possible that your actions have jeopardized your lawful permanent residency status in the United States. You should consult immediately with an immigration attorney to analyze your situation, determine whether you have complied with or violated the terms of your permanent residency, and tell you what is in your best interest.

Below, I explain important points that permanent residents should keep in mind to protect their legal status in the country and what they should do if at any time they wish to renounce this immigration benefit.

Requirements to return as a permanent resident

Generally, U.S. Customs and Border Protection will allow you re-entry into the United States as a permanent resident if you show that:

  1. You did not commit acts that make you inadmissible to the country.
  2. You did not abandon your permanent residence.
  3. You were not out of the country for more than one year, unless you obtained in advance a reentry permit authorizing you to stay abroad for up to two years.
  4. You have an alien registration card (green card), a re-entry permit, or you can obtain a waiver of that requirement at the border.

Abandonment of Permanent Residence

You will have problems returning to the United States if a customs officer determines that you abandoned your permanent residence and have no "intent" to return to the United States.

The determination of your "intent" is analyzed according to several factors, including the following:

  1. The purpose of your departure to Peru.
  2. The expectation that your overseas visit will soon be over.
  3. Continuous filing of U.S. tax returns.
  4. The existence of a permanent home and/or job in the United States.
  5. Other U.S. ties, such as family, property, club memberships, bank accounts, credit cards and driver's license.

If the customs officer believes that you have abandoned your permanent residency, he or she will give you the option of referring you to an immigration judge, who is the only person who can remove your permanent residency, to begin the removal process or allow you to voluntarily give up your legal status and return to Peru.

Voluntary Renunciation of Lawful Permanent Resident Status

If you decide to renounce your permanent residency, you must present the Form I-407, Record of Abandonment of Lawful Permanent Resident Status.

This document is filed with a customs officer or at a customs office. the U.S. Citizenship and Immigration Services office in Lima, Peruif you decide to no longer return to the United States. There is no fee to file the form.

Tourist Visa Application

It is possible to apply for a tourist visa after you have renounced your permanent residency. However, you will have to meet the requirements to obtain the visa, including not having an intention to stay and live in the United States.

Visa issuance is at the sole discretion of the U.S. Department of State.

Tax Obligations

As a lawful permanent resident of the United States, you have to declare all income you have around the world.. This responsibility could end if you renounce your permanent residence.

Mario, you say that you have never worked or paid taxes in the United States. But being a resident of this country, you should be paying taxes, even if you are living and working most of the time in Peru, unless you are not receiving any kind of income.

In addition to going to a lawyer to evaluate your case, you should go to an accountant to get advice on U.S. tax laws and whether you should pay taxes.

Do not give up your permanent residency without first consulting with an immigration attorney to determine what your legal options are.