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Protecting An Employee's Green Card Status Amid Pandemic

By Douglas Halpert · June 19, 2020, 6:44 PM EDT

Douglas Halpert
Douglas Halpert
It would make perfect sense for a general counsel or human resources director besieged by a myriad of complex legal issues during this pandemic to be focused on things other than the immigration status of their lawful permanent resident employees. After all, doesn't "permanent" mean permanent?

For green card holders who continue to live and work in the U.S., and avoid arrests and convictions, the chances are indeed extremely high that their immigration status will remain solid. And this group represents the great majority of lawful permanent residents.

However, lawful permanent residents who work for multinational companies and undertake temporary assignments abroad, or who simply travel abroad frequently, may unwittingly find their lawful permanent resident, or LPR, status or future naturalization eligibility under attack by U.S. immigration authorities.

The travel restrictions imposed by the president via executive order or presidential proclamation, as well as those imposed by some countries due to the pandemic, may result in lawful permanent residents getting stuck outside the U.S. for longer periods than anticipated. This increases the risk that permanent residents may, in some circumstances, find their LPR status under scrutiny by U.S. Customs and Border Protection upon an attempted U.S. reentry or by U.S. Citizenship and Immigration Services at a naturalization interview.

How could this happen, and how can these situations be prevented? The short answer is that many people do not understand the nuances of preserving LPR status and how certain events can subject a permanent resident to a loss of such status. Further, various factors may result in denial of naturalization if a lawful permanent resident who spends significant time outside the U.S. does not engage in planning.

The best way to explain the law in this area and illustrate the steps that can minimize the risk of these immigration problems is to outline a common situation that our office sees very often — the sudden decision to temporarily assign a lawful permanent resident to a foreign subsidiary – and use it as a tool to share best practices.

Best Practices to Preserve Permanent Resident Status

In our hypothetical, a multinational public health organization decides to assign its employee Dr. Smith to the Democratic Republic of Congo during the COVID-19 pandemic because she is a public health specialist with a Ph.D. in her field.

Her assignment is urgent, and she will need to depart within a week of the organization's decision, and work at the organization's Congo subsidiary. The organization drafts a secondment agreement relating to Smith's assignment. Smith is a lawful permanent resident and a citizen of the Democratic Republic of Congo.

Every foreign assignment contains the risk of one losing one's U.S. lawful permanent resident status. CBP makes a decision each time a lawful permanent resident reenters the U.S. about whether to challenge the person's permanent resident status as having been abandoned and confiscate their green card.

When a lawful permanent resident undertakes a foreign assignment, particularly one of several years, this risk becomes more significant. Proper planning in the following areas can lower the risk.

Assignment Agreement

Under U.S. immigration law, it is true that a lawful permanent resident remains eligible for U.S. reentry in LPR status if the lawful permanent resident permanent resident has not been outside the U.S. for over a year.

However, many incorrectly believe that as long as the lawful permanent resident's green card is unexpired and they are returning within 365 days, they are guaranteed readmission as a lawful permanent resident. Instead, CBP reviews the totality of circumstances, and there are a number of triggers that can lead CBP to charge the lawful permanent resident with abandoning permanent status at the border.

These triggers center on actions by the permanent resident that can result in a finding by CBP that they have abandoned their intent to reside permanently in the U.S. Such intent is essential to having a legal claim that one has properly maintained LPR status.

If the assignment abroad is of unspecified duration and if the CBP officer asks her for a copy of the secondment agreement and it does not state a specific, limited term, this affords CBP a potential opening to attack Smith upon reentry. If the precise length of assignment is hard to anticipate, then include a renewal clause.

It is also helpful to include a nonbinding aspirational statement, if the facts support it, that the organization anticipates that the lawful permanent resident will return to the U.S. after the temporary assignment is over, and that this is also the permanent resident's intention.

It is not necessary for the organization to guarantee a job to the permanent resident upon their U.S. return. However, failure to specify that the contract is of a limited term and that the permanent resident plans to return to the U.S. afterwards can lead to an impression that they are living abroad indefinitely, which may trigger an abandonment challenge.

Payroll

While the multinational public health organization for whom Smith works may have to consider other ramifications, such as taxation, in deciding whether its U.S. parent company will continue to pay Smith's salary or she will be placed on the foreign subsidiary's payroll, it is best if her employment contract continues to be with the organization's U.S. parent company and that she remain on the U.S. payroll. While not technically required, this arrangement would be a very strong U.S. tie.

Living Arrangements

It is not necessary that Smith own a U.S. home while on her assignment abroad. However, doing so would be powerful evidence of U.S. ties. Of course, if she rents her home to a tenant while abroad, she will not have the right to reside in the home, which would be a countervailing factor.

It is not necessary for her to rent a home in the U.S. while she is abroad, although if she rents a unit, does not sublet and stays in it during trips back to the U.S., that is a positive factor.

It would not be advisable for Smith to purchase a home abroad, as that might signify a plan to take up permanent residence abroad and abandon her intention to reside permanently in the U.S. It would be best if Smith instead rents a living space abroad for a limited term that is commensurate with the length of her foreign assignment. The temporary lease of a corporate apartment is a common scenario for multinational assignments.

Tax Returns

USCIS regards failing to file a U.S. tax return or the filing of a nonresident 1040NR tax return as tantamount to abandoning lawful permanent resident status. Therefore, Smith's tax adviser must understand that each year she is abroad, she must file a resident federal 1040 tax return — as must her dependents who are required to file a return — even if she were to earn no U.S. source income.

Because filing a nonresident return may result in her loss of her permanent resident status, it is critical that Smith review her U.S. tax returns before they are filed to ensure that they are on the resident 1040 form. She should also ensure that her foreign citizenship and lawful permanent resident status are properly reflected where required.

For example, IRS Form 2555 regarding foreign earned income contains questions about citizenship, residence and living arrangements. If Smith does not discuss her foreign citizenship and lawful permanent resident status with her tax preparer, such preparer may be on autopilot and list her as a U.S. citizen. This may constitute a false claim to citizenship, which can trigger removal — deportation — proceedings. Smith should put notification of her lawful permanent resident status in writing to the tax adviser and keep a copy.

Even aside from that draconian scenario, failing to answer in a way that demonstrates Smith's permanent residence is in the U.S. may put her at risk. In addition, it is advisable that, if Smith continues to own or rent a U.S. home to which she has access, she list her permanent U.S. home address as her tax filing address on the first page of her 1040.

Maintaining Other U.S. Ties

While Smith is on her temporary assignment abroad, it is also advisable that she maintain other U.S. ties such as bank, investment and credit card accounts, professional memberships, and any other ties that make sense for her. That she did not cut all her financial and professional ties to the U.S. will support the contention that she made in her foreign assignment agreement that she plans to resume her full-fledged U.S. life upon completion of such assignment.

Having family members, such as an adult child attending college, or a spouse remaining in the U.S., is also a positive U.S. tie that she can show if challenged.

Trips Back to the U.S

If Smith reenters the U.S. after a trip abroad of over half a year, CBP will treat her attempted U.S. reentry as an application for admission to the U.S. Some dormant issues, like an analysis of whether she received benefits under the new public charge rule, will apply. This is another major reason to always ensure that, even if Smith has a reentry permit in hand, that she always reenters the U.S. within each 180-day period.

Even if Smith reenters the U.S. within each 180-day period, the CBP officer will see Smith's travel history on the CBP computer when scanning her permanent resident card upon her U.S. reentry. CBP can and often does pull lawful permanent residents over to secondary inspection, if the officer notices that the permanent resident has been abroad for large periods of time.

Accordingly, during each U.S. reentry, it is advisable for Smith to carry copies of her foreign assignment agreement, latest U.S. 1040 tax return, proof of her ownership or lease of a U.S. home and access to it, U.S. bank account statements, and other proof of U.S. ties in addition to her passport and green card. Smith should have these items in her carry-on bag so she can present them — only if challenged — and protect her status.

Filing a Reentry Permit Application

Technically, the purpose of a reentry permit application is to enable the holder to remain outside the U.S. for up to two years before returning to the U.S. — expanding the allowable period to be abroad from 365 consecutive days with a green card. However, CBP has historically viewed presentation of a reentry permit upon U.S. reentry as a strong indication that the permanent resident intends that the foreign absence is temporary.

Conversely, CBP may view failure to present such a permit as an indication that the permanent resident has abandoned the intention to reside permanently in the U.S. Failure to present a permit may trigger the CBP officer to demand that the permanent resident sign an I-407 abandonment form.

CBP officers have often advised returning permanent residents who have an extended period of stay abroad that they better apply for a reentry permit.

Smith must apply for the reentry permit while she is still in the U.S., or it will be denied. Ideally, she should file the application at least six weeks before her U.S. departure, since biometrics that must be completed in the U.S. can take a month or longer.

Smith should always affirmatively present the reentry permit to CBP upon U.S. reentry, together with her Democratic Republic of Congo passport and U.S. permanent resident card.

U.S. Naturalization Eligibility

If Smith spends over 180 consecutive days abroad, it may break the continuity of residence she needs for naturalization eligibility purposes, and trigger a technical denial. Even a large number of trips that are just under the 180 day mark over a protracted period of time may pose a continuity-of-residence issue that can endanger a naturalization case. Naturalization eligibility is an additional area of complexity that requires detailed planning in order to try to preserve the permanent resident's ability to apply for naturalization as soon as eligible and avoid a denial.

Conclusion

While every absence of a half year or longer can pose a risk to one's ability to maintain lawful permanent resident status or achieve U.S. citizenship, with proper planning the organization and its lawful permanent resident employee can greatly reduce such risk.



Douglas Halpert is a partner at Hammond Neal Moore LLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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