Abandonment of Permanent Resident Status/Green Card
Generally, a Lawful Permanent Resident (LPR) can seek readmission or travel in and out of the U.S. indefinitely as long as he or she is returning to an unrelinquished lawful permanent residence. However, a LPR who is seeking to re-enter the U.S. after an extended absence abroad may encounter troubles at the Port of Entry and face the risk of losing their permanent resident status.
Requirements for returning resident status. A foreign national may return to the U.S. as an LPR when:
- The foreign national had the status of an LPR at the time of departure from the United States;
- The foreign national departed from the United States with the intention of returning and has not abandoned this intention; and
- The foreign national is returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the foreign national's control and for which the foreign national was not responsible. [22 C.F.R. § 42.22].
USCIS regulations state that a permanent resident card (Green Card) may not be used as an entry document after an absence from the U.S. for more than one year. Case law, however, indicates that abandonment of residence is more a question of intent, and a person may be determined to have abandoned their residence in less than one year, or may be found to have retained their permanent residence even if the absence exceeded one year.
Evidence indicating abandonment of residence. The following is considered evidence of abandonment of residence in the U.S.:
- Extended or frequent absences from the U.S.;
- Disposition of property or business affiliations in the U.S.;
- Family, property, or business ties abroad;
- Conduct while outside the U.S. such as, employment by a foreign employer, voting in foreign elections, running for political office in foreign country; and
- Failure to file U.S. tax returns. [9 FAM 42.22 N1.4].
Evidence rebutting presumption abandonment of residence. The following factors (non-exclusive) can be used to rebut a presumption that the foreign national has abandoned their residence in the U.S.:
- The LPR did not terminate his or her employment in the U.S.;
- The LPR's immediate family remained in the U.S.;
- The LPR retained full access to his or her U.S. abode; or
- The LPR did not obtain employment while abroad. [8 C.F.R. § 316.5(c)(1)(i)]
If a LPR has a need to reside abroad for a significant amount of time, whether it be to pursue educational opportunities abroad, explore challenging career prospects overseas or to take care of a relative abroad, and intends to return to the U.S. afterwards, they are highly encouraged to apply for a re-entry permit. The re-entry permit is a travel document issued by U.S. Citizenship & Immigration Services (USCIS) which establishes the LPR's intent not to abandon their permanent resident status in the U.S., despite the fact that they are residing abroad for a significant length of time. Some LPR's also may be able to qualify for expedited naturalization under INA §319(b).
As mentioned above, those LPR's who do not obtain a re-entry permit and remain abroad for a significant amount of time, may face troubles at the Port of Entry when seeking to re-enter the U.S. as returning LPR's. These troubles could include being advised by U.S. Customs & Border Protection (CBP) to surrender their permanent resident status and execute a voluntary abandonment form. Others face the risk of being placed in formal removal proceedings to have an Immigration Judge determine whether they should be permitted to retain their permanent resident status.
If you are an LPR who has been placed in removal proceedings for abandoning your permanent resident status or have been residing outside the U.S. for a significant amount of time without a re-entry permit, please contact our office to schedule a consultation to review your best strategy/approach to re-entering the U.S. on your next entry.