Absences that are too long and how to cure them

When has a lawful permanent resident abandoned residency by being out of the country for too long?

There is no fixed period of time that will trigger abandonment, but LPRs are treated as seeking re-admission if they have been absent from the United States for a continuous period of longer than 180 days. INA § 101(a)(13)(C)(ii). Although an LPR returning from a visit of more than 180 days is subject to the grounds of inadmissibility and can be questioned as to potential abandonment of residency, this usually only comes up when the LPR has been gone for more than one year.

Abandonment of LPR status is determined by a number of factors, however, and the length of the absence is only one of them. The factors that the agency will consider include the following: the LPR’s intent when leaving the country; any employment abroad; U.S. business affiliations; ownership of residence or property holdings in the United States; payment of U.S. taxes; length of time in the United States; community ties developed before the departure; maintenance of a bank account, club memberships, or other social ties within this country; and U.S. residence of other immediate family members during this period.

Therefore, evidence that the LPR has abandoned residency can include the following: extended or frequent absences from the United States; disposing of property or terminating a job in the United States before leaving; family, property, or business ties all located abroad; certain conduct while outside the United States, such as working for a foreign employer, voting in a foreign election, or running for political office in a foreign country; and failure to file U.S. income tax returns. 9 FAM 422.22 N. 1.4. Filing taxes as a nonresident alien is tantamount to an admission of abandonment.

Employment outside the United States by a U.S. employer would not likely be considered evidence of abandonment of LPR status, absent other factors. However, an LPR who lives and works in a foreign country and merely returns to the United States for brief visits periodically may still be found to have abandoned LPR status. Annual visits to the United States are no guarantee that LPR status will be preserved. 9 FAM 422.22 N. 1.10.

When an LPR has been abroad continuously for more than one year, the presumption is that abandonment has occurred. 8 CFR § 211.1(a)(2). But this can be overcome by the LPR’s evidencing that he or she has maintained sufficient ties to the United States and never intended to abandon residency. For example, the LPR may have intended to leave for a short period of time to care for a sick family member, but was required to stay longer than expected. A natural disaster, civil strife, or foreign government action could prevent the LPR from returning within the one-year period. Practitioners should advise LPRs who may be outside the United States for more than one year to obtain a reentry permit, Form I-327. Possessing this form removes the length of the absence as a factor as to whether residency was abandoned, assuming the LPR returns within the allowed period (a maximum of two years). This reentry permit may be obtained by filing Form I-131 with the USCIS before leaving, along with a filing fee of $360 and $85 biometrics fee.

Permanent resident aliens are entitled to a hearing as to whether they have abandoned their LPR status when returning from a lengthy absence. If it is requested, they will be paroled into the country for that purpose. The government has the burden of proving by clear, unequivocal, and convincing evidence that the LPR’s status has changed. In those cases, an immigration judge will hear testimony and weigh the evidence as to whether abandonment has occurred. An LPR retains that status until a formal determination has been made.

Some LPRs are never questioned at the border when they are returning from an absence of greater than one year. Thus they are readmitted without a problem. The issue then arises later as to whether they should apply for naturalization. Although the N-400 only asks about departures during the last five years, lengthy absences outside this period that caused possible abandonment are fair game for the USCIS adjudicator. Practitioners should weigh all the factors that determine abandonment and counsel the client as to the potential risks of applying for naturalization.

What advice can you give an LPR client residing abroad who has been outside the United States for more than one year? First, analyze all the factors and make your own determination as to whether the client has likely abandoned residency. If you believe the client has not abandoned residency, you can make two recommendations. Assuming the client has an unexpired I-551 residency card, he or she can simply travel to the United States and, if questioned, make the argument to a Customs and Border Patrol official at the border. This could it be at a U.S. international airport or a land port of entry. Some travelers, such as those departing from Canada, Scotland and other airports, are pre-screened for admissibility by Homeland Security officials before boarding the plane. Advise them to bring any documentation that would support their argument, such as proof of medical incapacitation, death of a family member, mortgage payments, or employment with a U.S. company abroad.

Alternatively, the client can file Form DS-117, Application to Determine Returning Resident Status, along with a fee of $275, with the U.S. consulate. This form may also be filed by LPRs whose resident alien card expired during their absence abroad. The client should submit evidence of LPR status, dates of travel outside the United States, proof of ties to the United States and intention to return, and proof that the protracted stay was for reasons beyond his or her control. Documentary evidence of the LPR’s intent to maintain a U.S. residence may consist of the following: a driver's license issued within the past year and reflecting the same address as that recorded on the Form I-94, Arrival and Departure Record; the name and address of the U.S. employer and evidence that a salary has been paid within a reasonable period of time; evidence of children’s enrollment in a U.S. school; evidence that the extended visit abroad was caused by unforeseen circumstances; evidence of a predetermined travel termination date, such as graduation or employment contract expiration; evidence of having filed U.S. income tax return(s) for the past year(s); and evidence of property ownership, whether real or personal, in the United States. 9 FAM 42.22 N. 1.3.

The consulate will conduct an interview and make a determination as to whether the LPR has abandoned resident status. A key factor in determining loss of LPR status, according to the State Department, is the absence of a fixed intent to return to the United States. 9 FAM 42.22 N.3. The DS-117 is considered an application for Special Immigrant Status, as set forth in INA § 101(a)(27)(A). If approved, the visit abroad will be considered temporary and the LPR will be readmitted as a returning resident in the SB-1 immigrant visa category.

If you believe the client has clearly abandoned residency, then he or she may still be able to return to the United States. An LPR who has abandoned residency abroad who is able to re-immigrate, such as through a U.S. citizen or LPR family member, would then proceed with the filing of an I-130 and going through consular processing. Those who no longer have those family relations and cannot re-immigrate through some other means may still apply for a nonimmigrant visa. But in both cases, the client should formally renounce his or her LPR status. This is accomplished by filing Form I-407, "Abandonment of Lawful Permanent Resident Status," with DHS at a port of entry or at any U.S. consulate. There is no filing fee. Form I-407 allows individuals to indicate either that they are seeking to abandon their LPR status or that they already "have abandoned [that] status" prior to filing the form. When an LPR parent’s residency is judged relinquished or abandoned, the LPR status of any minor children who accompanied the parent will also be lost.