Preventing Loss of Permanent Residence (Snehal Batra, Esq)

Tips on how to avoid abandoning permanent residence

Obtaining a U.S. Green Card is a long and complicated process, and often the first step in attaining the American Dream for many foreign nationals. While the Green Card signifies “Lawful Permanent Residence”, despite the name, LPR Status is not permanent. Once you obtain LPR status, you must evidence the intent to reside permanently in the U.S., and should take precautionary steps to prevent unintentional abandonment of LPR status.

As a Green Card holder, Lawful Permanent Resident, you can maintain this status until you choose to apply for U.S. Naturalization or you lose or abandon your LPR status. Green Card holders are subject to the grounds of deportability and may be removed from the United States. This article will focus on another basis for losing Legal Permanent Resident status by abandonment due to a prolonged absence from the U.S.

In our immigration law practice we have heard many misconceptions in the Indian community pertaining to LPR status. Many in the Indian community are under the impression that they can live abroad and maintain their Green Card by visiting the US every six months; or many believe that the loss of LPR status only happens if you remain outside the US for more than a year. Reliance on either of these misconceptions can lead to adverse and unintended consequences. If you are returning to the U.S. after a prolonged absence there is no guarantee that you will be readmitted to the U.S. by presenting your Green Card at the port of entry to a Customs & Border Patrol, “CBP” officer.

Upon returning to the U.S. an LPR is required to show that they are returning to an “unrelinquished” lawful permanent residence after a temporary visit abroad. Any LPR who returns to the U.S. after an absence may be questioned regarding whether they have abandoned or relinquished their LPR status even though they present a Green Card. Entry with a Green Card after an absence of less than a year provides no assurance that the LPR will be readmitted to the U.S. The burden is on the LPR to establish that their visit abroad was intended to be “temporary” and that their actions have been consistent with that intention.

Temporary or brief travel usually does not affect your Green Card status. However, if it is determined that you did not intend to make the U.S. your permanent home, you will be found to have abandoned your LPR status.

An absence from the U.S. of more than six months raises a presumption that the person abandoned their LPR status. Permanent Residents who are absent from the U.S. for one year or more often find it difficult returning on the Green Card.

There is no specific formula to determine whether an LPR has abandoned their status. The question of abandonment depends on the LPR’s intent rather than the length of time spent abroad. In Matter of Huang, 19 I&N Dec. 749, 753 (BIA 1988), the Board of Immigration Appeals (BIA) held that “what is a temporary visit cannot be defined in terms of elapsed time alone.” Nevertheless, the longer one spends outside the U.S., the more difficult it is to show an intention to return and live in the U.S. permanently.

Upon your return to the U.S. CBP may attempt to convince you to sign a statement (Form I-407) surrendering your green card if CBP believes you have abandoned your residence. If you refuse to sign the statement you may be issued a Notice to Appear (NTA) and placed in removal proceedings. LPR’s should not automatically surrender their green cards if asked to do so. It is important to know that an individual remains an LPR until a final order of removal is issued in removal proceedings. The government must prove abandonment by clear, unequivocal, and convincing evidence. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988).

If the issue of abandonment is raised, you should offer evidence of ties to the U.S., the purpose of the visit outside of the U.S., and the expected termination date of the visit abroad or occurrence of facts showing why a date certain is or was not possible. Each situation is evaluated on its own and all factors weighed and considered, including whether your intention was to visit abroad only temporarily, whether you maintain U.S. family and community ties, maintain U.S. employment, filed U.S. income taxes as a resident, keep U.S. bank accounts, have a valid U.S. driver’s license, own property or run a business in the U.S.

Some steps you can take to avoid losing permanent resident status include avoiding prolonged absences from the U.S. and maintaining continuous ties to the U.S. The following factors are considered for the purposes of determining whether the applicant has abandoned their Lawful Permanent Resident status:

Family ties – Does the LPR maintain close contact with family in the U.S., or does the LPR’s close family reside outside the U.S. with no intention to move to the U.S.?

Employment – Does the LPR have a job in the U.S. to which they can return, or is the LPR working outside the U.S.?

Income Tax Returns – Is the LPR filing U.S. tax returns as a U.S. resident?

Property – Does the LPR own or rent property in the U.S., or does the LPR own or rent property in another country?

Other Community Ties – Is the LPR actively involved or connected to organizations in the U.S.?

If an LPR remains outside the U.S. for more than one year, the regulations require invalidation of their Green Card, and DHS takes the position that residency has also been abandoned. Residency may also be deemed abandoned where a person lives and works abroad but visits the U.S. every year. Some LPRs who plan to remain outside the US for a prolonged time may qualify for a re-entry permit which, if granted, would allow the LPR to return to the U.S. within 2 years from the date of issuance. If you remain outside of the U.S. for more than 2 years, any re-entry permit granted before your departure from the U.S. will have expired. In this case, it is advisable to consider applying for a returning resident visa (SB-1) at the U.S. Embassy or Consulate.

Absences from the U.S. of six months or more may disrupt the continuous residency requirement for Naturalization. If your absence is one year or longer and you wish to preserve your continuous residency in the U.S. for naturalization purposes you can file an Application to Preserve Residence for Naturalization Purposes.

Under the current climate, there is much more scrutiny placed on people entering the U.S., even Green Card holders. It is important to understand how to maintain your LPR status before leaving the U.S. for an extended period of time. Getting sound legal advice is important for preserving your right to return to the U.S., maintaining your LPR status, and protecting your eligibility for Naturalization. An article focused on the eligibility for U.S. Naturalization will be published in the near future. For more information about this topic or any other immigration issue please contact Snehal Batra, Esq. at Snehal_Batra@visaserve.com

Ms. Batra is the Managing Attorney of our Central New Jersey office located in Neshanic Station, NJ. Ms. Batra is an Indian-American attorney whose practice includes all areas of US business/family immigration and Naturalization. She assists international businesses of all sizes with intracompany transfers (L-1), H-1B, Site visits, FDNS Investigations, DOL Wage & Hour Audits and Consular Processing of Immigrant and Nonimmigrant visa applications. She frequently travels to India to present seminars on L-1A and EB-5 to many organizations. Ms. Batra is an active member of the American Immigration Lawyers Association (AILA) since 2001. She is a member of the New Jersey State Bar and is also Chair of the Immigration Law Section of the Somerset County Bar Association. Ms. Batra is fluent in Gujarati.

NPZ Law Group – VISASERVE is a U.S. Immigration and Nationality Law firm that handles all types of immigration matters from employment, family, naturalization and removal. Please contact NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers at 201-670-0006 (Ext. 107) or visit our website at www.visaserve.com.

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