TN 14 (04-06)

GN 05010.035 Lawful Permanent Residency Test

A. Definition of Lawful Permanent Resident

An alien is a lawful permanent resident (for IRS purposes) if he/she has been lawfully admitted to the U.S. for permanent resident in accordance with U.S. immigration laws and that status has not been administratively or judicially determined to have been abandoned.

B. Policy

Permission to enter the U.S. and establish permanent residence does not establish a person as a U.S. lawful permanent resident. That person must have been actually admitted to the U.S. to establish permanent residence.

A claimant/beneficiary lawfully admitted to the U.S. for permanent residence is considered a U.S. resident until:

  • DHS/INS advises SSA or the claimant/beneficiary that it has determined his/her resident status has been abandoned (This includes information on the SAVE program showing resident status has been revoked or abandoned); or

  • The claimant/beneficiary (or his/her payee) advises SSA that he/she has abandoned his/her U.S. resident status.

A person who has been lawfully admitted to the U.S. for permanent residence can leave the U.S. and still keep his/her U.S. resident status for tax purposes. It is immaterial how long he/she lives outside the U.S. For IRS purposes, U.S. resident status does not require physical presence in the U.S. once a person has been lawfully admitted for permanent residence.

U.S. residence status continues until the person abandons his/her resident status or SSA becomes aware that the status has been determined by Department of Homeland Security (DHS) to have been abandoned or revoked.

Thus, a claimant/beneficiary who shows he/she is living in another country in question 3 of the SSA-21 may, under certain circumstances, be considered a U.S. resident for IRS purposes.

There will be cases in which a claimant/beneficiary left the U.S. a long time ago but still has his/her I-551. If the claimant/beneficiary tried to enter the U.S., DHS would probably make a determination that he/she had, in fact, abandoned his/her resident status. However, until such a determination is actually made by DHS, the claimant/beneficiary will be treated as a U.S. resident for alien tax purposes if he/she considers himself/herself to be a U.S. resident and submits the necessary evidence. A DHS determination cannot be inferred based on the assumption that DHS would make a determination of abandonment if the alien tried to reenter the U.S.

C. Procedure

1. Obtain Evidence

As evidence of U.S. resident status for the lawful permanent residency test, obtain the following in addition to the claimant/beneficiary’s signed statement as shown in GN 05010.030C.1.

a. Evidence of His/Her Admission for Permanent Residence

This can be:

  • his/her I-551, Permanent Resident Card;

  • his/her response to question 10 on the SSA-21 showing the “A” number on his/her I-551 and the issue date; or

  • documents listed in GN 00303.440B.1. through GN 00303.440B.5. AND

b. Information as to Whether Claimant/Beneficiary Has Been Advised of a Change in His/Her U.S. Resident Status

Information is needed as to whether the claimant/beneficiary has been advised that his/her resident status has been revoked or administratively determined to have been abandoned by DHS/INS or whether he/she has abandoned or otherwise given up his/her U.S. resident status.

This information is requested in questions 11 and 12 of the SSA-21. If the claimant/beneficiary is not completing an SSA-21, obtain this information when the nonresident alien tax provisions are explained to him/her.

2. Verify LAPR Status

Verify through the SAVE program (as explained in RM 10214.110) that the beneficiary has been lawfully admitted to the U.S. for permanent residence and that status has not been revoked or otherwise terminated. Annotate the file to show the results of the verification.

EXCEPTIONS: Verification through the SAVE program is not necessary if:

  • The development is being taken in connection with a domestic-to-foreign change of address and the lawful presence (LAW PRS) data line on the MBR shows LAPR and there is no stop date; or

  • The claimant/beneficiary states that his/her U.S. residence status has been revoked or abandoned.

Annotate the MBR LAW PRS line to show that the LAPR stop date if the SAVE verification or the claimant/beneficiary shows that LAPR has been abandoned or revoked (MSOM COMMON 005.011).