Although a green card holder or legal permanent resident, “LPR” is permitted to travel outside the United States, green card holders need to be aware of certain activity that can cause an immigration officer to suspect that they may have abandoned legal permanent resident status.
Under what circumstances can I be considered a legal permanent resident who has abandoned my legal permanent resident status?
Circumstances under which an green card holder an be considered to have abandoned legal permanent resident status include but are not limited to:
- Departing the United States with the intent to move to another country to live there permanently.
- Declaring yourself as a “nonimmigrant” on your U.S. tax returns.
- Remaining outside the United States for an extended period.
What are the circumstances where a Green Card holder can be considered to have abandoned legal permanent resident status when traveling abroad for an extended period?
Unfortunately, an intent to abandon green card status or live in another country does not have to be communicated. An immigration officer can infer intent based on an examination of the reason for the trip, the length of the trip and circumstances relevant to the LPR’s possible intent in maintaining a permanent residence within the United States or abroad. Generally, a trip of six months or more can be considered by an immigration officer as a red flag indicating that a green card holder intends to live permanently abroad. If the green card holder is abroad for one year or more, an immigration officer can now presume that the LPR has abandoned legal permanent resident status.
In addition to trips of long duration, a green card holder can also be considered to have abandoned status if an immigration officer suspects that the green card holder intends to live permanently abroad. For example, if an Immigration officer becomes aware of circumstances such as the LPR keeping an address abroad as a permanent residence; maintaining a job abroad, and spending most or perhaps a good portion of the year in the foreign country, such circumstances may lead the officer to conclude that such person abandoned lawful permanent resident status. However, in any of these scenarios, the green card holder will have an opportunity to prove that the LPR did not intend to abandon status.
What happens if an immigration officer raises the issue of abandonment of lawful permanent resident status?
When a green card holder is suspected of abandoning status, the immigration officer will press the green card holder for more details to determine the purpose and circumstance surrounding the trip. If the green card holder is able to satisfy the officer that the he/she did not intend to abandon green card status, the officer will allow entry of the green card holder (LPR) into the United States without any more issue.
However, if the officer continues to suspect that the green card holder is living permanently abroad, in some occasions, the officer will try to pressure the green card holder to sign a document admitting that the green card holder has abandoned legal permanent resident status. In such a scenario, it is imperative for the green card holder to maintain calm, refuse to sign any document relinquishing status and communicate the intention to assert the right to have a hearing before an immigration judge. You should not sign this form to voluntarily give up your green card if you do not want to give up the green card.
In most cases, an officer suspecting that an LPR abandoned status will parole (admit) the person into the United States and place the LPR in deportation/removal proceedings. This may or may not involve detention while the proceedings are occurring but likely will not involve detention. In proceedings, the green card holder will appear before an immigration judge, where the Government will have to prove that the green card holder abandoned status. If the Government meets the burden by providing evidence that the LPR abandoned legal status, the LPR will still have the opportunity to convince the judge that the LPR did not intend to abandon status. The Immigration Judge will then have the final say whether the LPR gets to stay in the United States and keep status or terminate status and order removal of the green card holder. ONLY an immigration judge can take away your green card.
If facing an abandonment charge, can a green card holder prove that there was no intent to abandon status?
As discussed, in circumstances where you are facing or potentially facing a charge of abandonment before an immigration officer; or in removal proceedings where the government met its burden, you will be given the opportunity to prove that you have not abandoned your status. It is important to maintain documentation that shows you keep your place of permanent residence in the United States and evidencing that you have significant ties or roots in the United States. Types of evidence considered can be as simple as information revealing close family members in the United States; documents demonstrating work history; history of paying taxes in the United States and documentation of the purchase of high priced items such as vehicles or real property as well as consistent purchases such as regularly needed items for a business or household. Moreover, any business, financial or bank account records maintained in the United States would also be helpful in proving intent to permanently reside in the United States.
Furthermore, you will likely be required to explain the purpose and the circumstances surrounding a trip especially one of long duration. Common questions raised that a green card holder should be ready to address are explaining whether a trip of long duration was planned or whether the long duration arose out of an unexpected situation like a health-related reason. If planned, the green card holder should prepare to explain the reason or purpose for the long duration of the trip and whether the purpose for the trip was accomplished. Best cases challenging a charge of abandonment of status are cases where the purpose of the trip was related to a business or the care of a sick family member where the LPR returned to the United States right after the objective was accomplished and although the LPR was abroad, the LPR continued to hold out and maintain a primary residence including any and all benefits and obligations in keeping such residence in the United States. In contrast, a problematic case would be one where there was no real purpose for a prolonged trip and the LPR sold real property and/or business interests in the United States immediately before the trip and maintains a primary residence abroad where the LPR derived primary income from work or business from abroad.
Is there anything I can do proactively to avoid being suspected of abandoning my legal permanent resident status?
The safest although not always guaranteed way to avoid such suspicion is as we have mentioned, to avoid long trips with a duration approximating six months. Again, you also want to avoid any indication that your primary residence is abroad or that you are employed in a foreign country.
With respect to travel of long duration, keep in mind that the trip maybe considered reasonable where the purpose of the trip was clearly defined, and the trip was planned for a clearly definite amount of time. Furthermore, another way to avoid suspicion when facing a long trip is before traveling, to apply with the United States Citizenship and Immigration Service for a permit to re-enter the United States known as form I-131. However, it is important to note that if circumstances of the trip change from the circumstances and purpose declared in the I-131, you may still be accused with abandonment especially if the trip is extended beyond the permitted two year period granted by the I-131.
A legal permanent resident that finds herself abroad for more than one year is technically required to file for an SB-1 visa with the U.S. consulate abroad where a consular officer just like an immigration would evaluate the purpose and circumstances surrounding the trip to determine whether the LPR intended to abandon legal permanent resident status. If the consular officer is convinced that the prolonged trip was reasonable under the circumstances and that status was not abandoned the visa will be approved allowing the legal permanent resident to enter the United States without issue and to continue to maintain status.
Finally, one last thing to keep in mind is that there have been many instances where an immigration officer will not key in on the prolonged trip and allow entry without raising the issue of abandonment. However, this possibility, especially where the LPR maybe applying for citizenship in the future should not be counted on since the Immigration service can raise the issue during a future citizenship application. Therefore, best efforts should be made either to avoid a trip of duration over six months or to maintain records or prepare a trip in such a way to easily establish that the LPR always intended to live full time in the United States and not in a foreign country abroad.
Consult with an attorney.
Remember that this is a general guide. It is very important to always speak with an immigration attorney to discuss your circumstances and if it is necessary to prepare and guide you if you are facing such a situation.
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