New York Lawyer's Legal Updates

What Happens When LPR Spends Long Time Overseas

Author: Green Card Lawyer Alena Shautsova

A green card holder or a lawful permanent resident, is presumed to have settled in the United States after the receipt of the status. As such, the law states, that if an LPR spends too much time abroad, he/she can lose the green card.

Often, the issue arises in the airport upon the LPR’s arrival after a stay abroad that lasted for longer than a year, or after multiple, frequent, prolonged trips abroad, even if each of such trips was shorter than six months.

Sometimes, what happens in such a situation is that a CBP officer would take the green card away, would parole the LPR into the United States, and place such an LPR in removal proceedings. It is important to know that only an Immigration Judge may “take away” the green card status, a CBP officer lacks such authority. A CBP may take the physical card away, but not the status itself. The basic test for evaluating whether a lawful permanent resident has abandoned that status by virtue of traveling abroad is whether his extended trips outside the United States constitute "temporary visits abroad." Singh v. Reno. A trip is ''temporary" if it is (1) "relatively short," or (2) if not short, the respondent had "a continuous, uninterrupted intention to return to the United States during the entirety of his visit." Id. As to intent, "(t]he issue is not whether the [respondent] had the intent to return ultimately, but the intent to return to the United States within a relatively short period." Id. To ascertain an alien's intent to abandon LPR status, the Immigration Judge must examine not just the amount of time the individual was absent from the United States, but also the location of his family ties, property holdings, job, etc. See, e.g., Matter of Huang, at 755-57; Matter of Kane, at 262-63; Khodagholian v. Ashcroft, at 1007.

A CBP officer may also offer to the person to submit a form I 407: a form that relinquishes one’s permanent resident status in the US. Do not agree to sign I 407 form if you do not wish to give up your permanent resident status.

How to avoid this problem? It is actually very easy. One has to file form I 131. The form has a fee for it, which currently $660. An applicant will have to submit him/herself for fingerprints, and ideally, wait for the permit to arrive in the US, but it is possible to depart the US and wait for the permit to be mailed abroad.

If a person “got stuck” overseas for over a year, and his/her green card expired, he/she will have to submit an application for a returning resident visa. An application can be granted, if a person can demonstrate that he/she had a good cause that prevented him/her from returning to the US: it can be a medical issue, family issue, employment, etc.

If you have questions regarding Green Card and Travel, call our office for a consultation at 917-885-2261.

11 November 2017
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