When a non-citizen is a lawful permanent resident (LPR), they are usually allowed to leave the U.S. and return almost as easily as a citizen. There are certain circumstances when LPRs who are returning to the U.S. will be treated like other non-citizens. Those situations include when the LPR has a criminal conviction that makes them inadmissible, they left the U.S. to engage in criminal activity and when they are outside of the U.S. for more than one year.
In that third situation, often times the CBP officer at the airport will ask you why you were outside of the U.S. for so long and sometimes try to convince you to sign a Form I-407 Abandonment of Lawful Permanent Resident Status. DON’T DO IT! It is the government’s burden to prove that you abandoned your LPR status, by signing the form, you are admitting they are correct and you will likely lose your green card. There is much more analysis involved in whether you abandoned your green card then just being outside of the U.S. for more than a year.
If you find yourself in that situation, don’t sign the I-407, tell the officers you want to keep your green card and see an Immigration Judge. They will likely send you to Deferred Inspection, issue you a Form I-862 Notice to Appear and then send you to see an Immigration Judge. Even though CBP may have taken your actual green card, you are still a lawful permanent resident until an Immigration Judge issues a final order of your removal from the United States.
If you find yourself being accused of LPR abandonment, you should consult with and hire an experienced Immigration Attorney as soon as possible. An experienced immigration attorney can research your family and immigration history, your reason for leaving the U.S. and fight for you to keep your green card.
In order to be admissible to the United States, a non-citizen must qualify as a returning lawful permanent resident pursuant to 22 C.F.R. § 42.22(a) and INA § 101(a)(27)(A). Otherwise, a non-citizen is considered to have abandoned their lawful permanent resident status and is inadmissible. See, Bigler v. U.S. Att’y Gen., 451 F.3d 728 (11th Cir. 2006); Matter of Muller, 16 I&N Dec. 637 (BIA 1978).
“To qualify as a returning resident alien, an alien must have . . . retained that status from the time that [they] acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad.” Bigler, 451 F.3d at 733; Muller, 16 I&N at 638-639. The alien must also show a “continuous, uninterrupted intention to return to the United States during the entirety of his visit [abroad].” Bigler, 451 F.3d at 733; Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997). The government must prove two things by clear and convincing evidence in order to determine that an LPR has abandoned their lawful permanent residence, 1) they are not returning from a temporary trip abroad; and 2) they have relinquished their residence in the United States. See, Bigler, 451 F.3d 728; Muller, 16 I&N Dec. 637.
The term “temporary” is not subject to inflexible definition and varies in application depending upon the facts and circumstances of each particular case. See Gamero v. INS, 367 F.2d 123 (9th Cir. 1966). While the length of time spent abroad is important, it is the intention of the alien, when it can be ascertained, that will control. Other factors examined in determining the alien’s intention have included the location of family ties, property holdings, and employment. Matter of Huang, 19 I&N Dec. 749, 753 (BIA 1988); Muller, 16 I&N Dec. 637.
As you can see, there is much more to LPR abandonment than just being outside the U.S. for more than a year.
John Gihon is an immigration and criminal defense attorney with the Law Offices of Shorstein, Lasnetski & Gihon. If you are an LPR who has been outside of the U.S. for an extended period of time and want to come back or have been accused of abandoning your LPR status, call us today for a consultation.