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