Attention EB-5 Conditional Green Card Holders! How to Maintain Continuous Residency Status while Abroad
EB-5 investors who have obtained their conditional green card are often unable or unwilling to immediately relocate to the United States. This can happen for several reasons, such as work or school commitments, or because the cautious investor prefers to permanently relocate once the conditions on his or her green card have been removed.
The Conditional Green Card Stage:
EB-5 investors first receive their conditional green card, which offers many of the same benefits as a regular green card, however it is only valid for two years and extension of status is contingent on the EB-5 project satisfying USCIS requirements, including job creation, and approval of the I-829 petition.
Once a conditional green card has been obtained, EB-5 investors must meet several regulations to ensure they do not lose their permanent residency status:
- The applicant cannot be physically outside of the U.S. for more than one year unless they have a re-entry permit
- The applicant cannot be physically outside of the U.S. for more than two years unless they have a returning resident visa
- The investor must file income tax returns and should not be categorized as a “non-immigrant”
Other helpful ways to demonstrate that the applicant has substantial ties in the U.S. include*:
- Maintaining property in the U.S.
- Bank and credit card statements
- Employment letters
- Relatives and dependents living in the U.S.
*Please note that these documents are beneficial as complimentary evidence but should not be used individually to demonstrate physical presence and continuous residency. Please consult with your immigration attorney if you have any questions or concerns.
Maintaining Continuous Residency and Physical Presence
Once an EB-5 investor has obtained their permanent green card and is ready to naturalize as a U.S. citizen, a different set of requirements emerge. Continuous residency and physical presence requirements exist with higher standards that can prove more challenging to meet, especially for those working abroad.
USCIS defines continuous residency as an applicant “maintaining a permanent dwelling place in the United States over the period of time required by the statute.”1 Generally, applicants must be a continuous resident in the United States for five years subsequent to receiving their Legal Permanent Resident (LPR) status.2 However, other factors that may establish continuous residency include:
- Not terminating employment in the U.S.;
- Presence of immediate family in the U.S.;
- Retention of full access to U.S. home; and
- Not obtaining employment abroad.3
If continuous residency is disrupted for an extended length of time (six or more months), USCIS may consider the applicant to have abandoned their LPR status. This poses a challenge for LPRs who are working abroad – fortunately, there are accommodations USCIS allows for LPRs working overseas for a U.S. employer.
Employees of the U.S. government, an American research institute, a U.S. firm* engaged in the development of foreign trade and commerce, or a public international organization of which the U.S. is a member (e.g. the United Nations) can obtain approval to preserve residency for themselves and their immediate family by filing Form N-470.
Filing Form N-470 allows for a disruption in continuous residency, however, physical presence requirements must still be met. Applicants for naturalization are required to be physically present in the U.S. for at least half of the five years of continuous residency, and one complete year during this period must be uninterrupted physical presence. Any absences, no matter how brief or casual, are not permitted during this one-year period.
To recap: employees working abroad, as outlined above, are provided extended absence benefits regarding continuous residency, but must still meet the physical presence requirement for naturalization.
*A U.S. firm includes a subsidiary where more than 50% of stock is owned by a U.S. firm or corporation. It also includes a publicly held U.S. corporation that trades stock exclusively on U.S. exchanges. If the company does not trade exclusively on the U.S. stock market, the nationality of the firm is determined by who owns 51% of the stock.