Abandonment of Permanent Residence

Lawful permanent residence is not always “permanent.” Lawful permanent residents (LPRs) are subject to grounds of deportability that may lead to removal from the United States. One reason for deportability is something called “abandonment” of lawful permanent residence status. The issue of abandonment of lawful permanent residence arises in various situations.

An LPR may be found to have abandoned lawful permanent residence status by moving to another country, remaining outside the U.S. for a long period of time, failing to file income tax returns while outside the U.S., and/or declaring oneself a nonimmigrant on U.S. tax returns.

Many lawful permanent residents travel outside the U.S., whether for leisure, business, or visiting family and friends. Upon re-entry to the U.S., a lawful permanent resident may be stopped by Customs and Border Patrol (CBP) if CBP believes them to have abandoned their residence. If this is the case, CBP may issue a Notice to Appear (NTA) for the LPR to appear in immigration court, or they may try to get the individual to sign a statement, an I-407, indicating that they have abandoned their residence and leave the U.S.  If an LPR faces this situation and hopes to maintain their residence, it is best not to sign the I-407 but ask to be issued an NTA so that their case can be reviewed by an immigration judge.

Even if an LPR signs an I-407, they are not precluded from having their case heard before the immigration judge, but it may be harder for them to prove that they have not abandoned residence. Only an immigration judge can make a finding of abandonment. In removal proceedings, the government has the burden to prove by “clear, unequivocal, and convincing evidence” that the LPR abandoned residence.

Many LPRs believe that if their trips outside the U.S. always last less than 6 months, they will not face any issues upon their return, or that if their trip is longer than one year, they will definitely lose their lawful permanent residence status. Those beliefs are not always accurate. Each situation is evaluated on a case-by-case basis, and many factors are considered while making the determination that an LPR has abandoned residence. The main finding must be whether the LPR had an objective intention to return to the U.S. after their trip abroad.

An immigration judge can consider many factors in making his finding including whether or not the immigrant has family ties to the U.S., whether the LPR has a job in the U.S. or is working outside the U.S., whether the LPR is filing income tax returns in the U.S., whether the LPR has community ties to the U.S., whether the LPR owns property in the U.S., whether the LPR was taking care of sick family members in the U.S., or if certain situations in their country precluded them from returning to the U.S. If the immigration judge decides that the immigrant has abandoned residence, a removal order will be issued.

In addition to reentry to the United States, the issue of abandonment of lawful permanent residence can come up throughout the naturalization process. When most LPRs apply for naturalization, they must disclose all of their addresses for the last five years, employers for the last five years, trips over 24 hours for the last five years, and whether or not the LPR has ever failed to file income taxes or filed taxes as a nonresident. If an immigration officer reviewing the naturalization application believes the immigrant abandoned residence, they can issue a Notice to Appear so that the immigrant is placed in removal proceedings.

LPRs who plan to be out of the country for a long period of time such as one year or more can apply for a reentry permit. They can apply for this permit before leaving the U.S. The reentry permit along with the lawful permanent resident card should allow them to reenter the U.S. following an absence of more than one year. Obtaining a reentry permit, however, does not mean that an immigrant cannot be found to have abandoned residence. The reentry permit provides that the LPR cannot be found to have abandoned residence solely based on the time they were outside the U.S., but other factors such as those described above may be taken into consideration.

One advantage of becoming a U.S. citizen is that you do not have to worry about abandoning lawful permanent residence or being subject to any other deportability grounds. You can travel outside the country for as long as you want and not have any issue upon reentry.

If you are a lawful permanent resident who is planning to be outside the U.S. for a long period of time, call our office to speak with an attorney about maintaining your lawful permanent residence during your absence.

Posted in Abandonment, Immigration Court & Removal Proceedings.