Immigration officers often claim a permanent resident green card is abandoned when the permanent resident is out of the U.S. for longer than 6 months in a single trip. The question is whether the foreigner gave up US residency. A reentry permit helps clarify that US residency was not abandoned, but many people do not obtain a reentry permit prior to travel. Moreover, a reentry permit is only prima facie evidence of an intent to return to the U.S. in a reasonable time. Consequently, any stay abroad more than 6 months comes under scrutiny.
Abandonment is an Incorrect Term
The term “abandonment” should be used exclusively for purposes of INA 101(a)(13)(C)(i). In the context of a naturalization application, it’s better to use the phrase, “break in the continuity of residence”, as referenced in INA 316(a). Immigration officers often conflate 101(a)(13)(C)(i) issues with 316(a) issues, with disastrous results. Keep the concepts clear and distinct when working on naturalization issues.
8 CFR 316.5(c)(1)(i) establishes a rule of presumption, not a waiver rule. If the permanent resident is out more than 6 months but less than year, there is a rebuttable presumption the client has a break in continuity of residence. The foreigner can rebut the presumption of the break by submitting evidence that comports with 316.5(c)(1)(i)(A)-(C). Some clients who are out for more than 6 months but less than a year can rebut the presumption of the break, while others cannot do so. Essentially, you need to show the permanent resident did not give up U.S. residency when traveling abroad.
Year-and-one-day rule trap!
Though filing the application a year and one day after the foreigner returns from the one-year trip shifts the analysis from (c)(1)(ii) to (c)(1)(i), that change in the reviewable statutory periods and the applicable legal analysis, DOES NOT change the evidentiary nature of the trip abroad. Plus-one-year is always plus-one-year, whether analyzed under (c)(1)(ii) or (c)(1)(i). Put differently, if you have bad facts related to a plus-one-year trip abroad, they never get better. Access to the rebuttable presumption by using the year-and-one-day rule just means the client gets denied on the evidence, not as a matter of law. Consequently, you still need to argue there was not a break in continuity during a trip abroad of more than 6 months. In this situation, the plus-one-year trip needs to be completely outside of the 3-year or 5-year look-back period to avoid scrutiny.