This is the question commonly asked by people who are considering whether to apply for permanent residence in the U.S. There is no one size fits all answer to this question. Moreover, the issue and question should be framed instead in terms of how much time can a legal permanent resident ("LPR") or a conditional legal permanent resident ("CLPR") spend outside the U.S. without losing the LPR or CLPR status.
It is standard procedure for Customs and Border Protection ("CBP") inspectors to ask LPR's and CLPR's returning from abroad how long they were away. This seemingly harmless question can snowball into the person losing his or her LPR or CLPR status in the U.S. based on the idea that the person has "abandoned" the LPR or CLPR status. If the LPR or CLPR has been away for more than 1 year, then that is irrefutably considered abandonment. If the LPR or CLPR has spent more than 1 month outside of the U.S. at one time, the CBP officer might inquire further as to whether the person ever established residence in the U.S., and if so, whether the person is maintaining the residence in the U.S. The more months that a person is away, the greater the likelihood of a challenge of this sort. If the CBP officer is not satisfied that the the LPR or CLPR has established and/or maintained residence in the U.S., then he or she would present the LPR or CLPR with the choice of renouncing the LPR or CLPR status and being admitted to the U.S. as a non-immigrant or facing a removal procedure and going before an immigration judge. In the event that the LPR or CLPR would be ordered removed by an immigration judge, or would depart from the U.S. after the commencement, but before the conclusion, of removal proceedings, then that person would be subject to a 5-year bar from returning to the U.S. This is, therefore, a serious matter.
What kind of evidence can the LPR or CLPR submit in order to counter such a challenge by the CBP officer?
- Evidence of employment and/or business activity in the U.S.
- Evidence that the spouse and children are living in the U.S., that the spouse is employed or engaging in business in the U.S., and that the children are attending school/university or working/engaging in business in the U.S.
- Evidence of filing tax returns in the U.S. as a resident.
- Evidence of maintaining a house, condominium, apartment, automobile(s), etc. in the U.S.
- Evidence of maintaining bank accounts, credit card accounts, health insurance, automobile insurance, life insurance, membership in clubs or organizations in the U.S.
- Personal, business, or government correspondence received at the U.S. address.
In case the LPR or CLPR does not have this evidence on hand at the time of admission and the CBP officer is not showing any indication of relenting in this challenge, then the LPR or CLPR should try to reason with the officer to allow for a deferred inspection, which would give the LPR or CLPR the opportunity to gather and present the above-mentioned evidence of establishing and maintaining residence in the U.S. at a follow-up interview at a designated CBP office in the area where the LPR or CLPR lives.
If a person must spend a lot of time outside of the U.S., then I would suggest, in order to minimize the chances of facing this harassment, that the LPR or CLPR travel between the U.S. and whatever country abroad more frequently so that the amount of time away from the U.S. is as short as possible, regardless of how long the person stays in the U.S. between trips.
In the case of a married couple immigrating under the EB-5 program, if one of the spouses will still need to travel abroad frequently on business, it would be a good idea for the spouse, who will spend more time in the U.S., to be the investor, and as such the "anchor" for the family who would have less exposure and vulnerability to challenges by CBP officers. In general, if a EB-5 investor and his family are not ready to move to the U.S., then the investor and family should hold off on immigrating under the EB-5 program until they are ready to move to the U.S. However, one should also bear in mind that it currently takes around a year in order to obtain conditional permanent residence in the U.S. under the EB-5 program. Plus, if the investor and family are obtaining an immigrant visa through the consulate, the immigrant visa is valid for 6 months, and so it gives them additional time to rearrange their affairs in the country of origin prior to moving to the U.S.
The bottom line to remember is that LPR or CLPR status in the U.S. are a "use it or lose it" proposition.