The rules for traveling abroad are roughly the same for all. Whether a U.S. citizen, lawful permanent resident (LPR), or a non-immigrant visa holder, you must have a valid passport from your native country. Depending on the country of destination, there might be other requirements such as obtaining a visa.
Leaving the United States is not usually the problem. Rather it is re-entering the United States where the situation can become more complex for an LPR or a non-immigrant visa holder.
Lawful Permanent Residents
To renter the U.S., an LPR must present an unexpired green card and another form of identification (passport, foreign national I.D., or a U.S. driver’s license). Although LPRs are allowed to travel abroad, trips lasting longer than six months could jeopardize their LPR status.
Under section 101(a)(13)(ii) of the Immigration Nationality Act (I.N.A.), an LPR who has been absent for a continuous period of more than 180 days may be considered an applicant for admission. Under section 101(a)(13)(i), an LPR may also be treated as an applicant for admission if he or she has abandoned or relinquished his or her LPR status.
An applicant for admission means that the United States government will presume that the LPR has abandoned their lawful permanent residency if they are outside of the country for too long. The general guide is whether the LPR has been absent for more than a year. However, abandonment of residency can be found in trips less than a year. The immigration officer will look at certain factors to determine whether an LPR may have abandoned their status. Such factors include:
- Whether the intention to visit was temporary;
- Whether the LPR has maintained community ties;
- Whether the LPR has U.S. employment;
- Whether the LPR has paid U.S. income taxes as a Resident; and
- Whether the LPR maintains a U.S. mailing address.
For LPRs who are planning to be gone for a year, it is advised that they apply for a Re-Entry Permit (Form I-131) prior to departure. The absence of six months or more may also disrupt the continuous residency status for naturalization.
An LPR does not just need the proper documentation to re-enter but also needs to be admissible upon entry. Those with a criminal history need to take extra precautions and seek an experienced immigration attorney before departing the United States.
Non-Immigrant Visa Holders
For non-immigrant visas such as visitor, employment, study, or religious visas, the holder must present the following documents:
- A valid, unexpired passport that does not expire for at least six months into the future;
- Immigration document that is valid and beyond the date of return and signed by the appropriate official;
- A copy of the approval notice; and
- The most recent I-94; and
- A valid unexpired visa stamp.
The immigration official may require the visa holder to demonstrate that they have enough financial means to support them for the remainder of their stay in the United States.
Problems can occur if the non-immigrant has a pending application to become a permanent resident. Section 214(b) of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1184(b) states:
Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a non-immigrant status…
If there is a pending application to become a lawful permanent resident, or the visa holder is married to a U.S. citizen, the visa holder must be cautious and consult with an experienced immigration attorney prior to travel. Failure to do so may result in a denied entry based on the assumption that the visa holder has an immigrant intent to remain in the United States.
Immigration laws are complex and confusing. As the Second Circuit correctly described it, immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete.” Lok v. INS, 548 F.2d 37 (2d Cir. 1977). Knowing your rights and obligations before traveling can save you money, time, and peace of mind after a long flight home.
If you or someone you know is traveling abroad and has any question, contact one of our offices to schedule a free consultation with an attorney who specializes in deportation cases. We offer free telephonic and video consultations at our offices in Orange, Riverside, San Diego, Fresno, Sacramento, and San Francisco, California; Phoenix, Arizona; Salt Lake City and Orem, Utah; and Boise, Idaho.
ABOUT THE AUTHOR(S)
Michelle Williams is an associate attorney for Wilner & O’Reilly in their Boise office. She was raised in Idaho and lives in Boise. She received her Juris Doctor from Concordia University School of Law and was admitted to practice law in Idaho in 2018. Michelle’s mother is an immigrant from Mexico and Michelle has always had a deep love for her Hispanic heritage. During her time in law school, Michelle was actively involved in Concordia’s immigration clinic, where she witnessed the struggles faced by immigrants. This was the start of her devotion to removal defense, and passionately advocating for her clients in court.