With all the trouble immigrants go through to obtain their lawful permanent residence (LPR), you would be surprised to find out that some immigrants abandon their LPR status, in most cases, unintentionally. Typically, this happens when an LPR visits his home country and stays abroad for too long. Upon his return to the U.S., a Customs and Border Patrol (CBP) officer at the port of entry determines that, due to his long or frequent travels abroad, the LPR has abandoned his residence in the U.S. The CBP officer then initiates removal proceedings by issuing a notice to appear (NTA) to the LPR and retains the LPR’s passport and green card.
There appears to be a common impression that an LPR would not lose his residence if each of his travels abroad does not exceed 6 months. This period might have come from the requirement in citizenship applications that an LPR must reside in the U.S. continuously and that an absence of more than 6 months would break the continuity of residence. However, abandonment of LPR status is different from the continuous residence requirement in citizenship applications. Abandonment of LPR status is not determined alone by the length of time spent outside the U.S.
An LPR would not be deemed to have abandoned his LPR status and would be allowed to come back to the U.S. as a returning resident if he is returning from an unrelinquished residence in the U.S. after a temporary visit abroad.
A temporary visit abroad cannot be defined in terms of elapsed time alone. The intent of the alien will determine whether or not a visit is temporary. In Matter of Kane, 15 I&N Dec. 258 (BIA 1975), the Board of Immigration Appeals (BIA) discussed the elements that should be examined when determining the subjective intent of the alien. First, find out the purpose of the trip. The alien should have a definite reason for traveling abroad.
Second, this trip should be expected to terminate within a relatively short period, fixed by some early event. An example would be selling the alien’s property abroad. This trip has a definite and pre-determined purpose that could be accomplished within a reasonable time. However, if unforeseen circumstances prevent the alien from returning, the trip would retain its temporary character as long as the alien intends to return as soon as his original purpose is completed. An example would be if the alien becomes very ill while on a trip to sell his property abroad. If, as soon as the alien recovers from his illness and completes the transaction on his property, he returns to the U.S., the trip would still be considered temporary even though it might have taken longer than originally anticipated.
Third, the alien must expect to return to the U.S. as his actual home or his place of employment or business. He must have this intent to return at the time of he left the U.S. and he must maintain this intent during the course of his trip.
Thus, CBP officers at the port of entry do not focus on the length of the trip alone but they examine the totality of circumstances to see where the alien actually lives. In Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1985), the Ninth Circuit Court Appeals identified factors that could be used to determine whether an alien has abandoned his LPR status. Inspectors at the port of entry should compare the alien’s family ties, property holdings, business affiliations or employment in the U.S. and in the foreign country. Also relevant is the conduct of the alien in the foreign country that would indicate that he intends to remain in that country. Hence, it’s a matter of weighing the alien’s ties and activities abroad and in the U.S. If the alien has more ties or significant activities abroad, CBP may conclude that his actual residence is abroad and he has abandoned his LPR status.
Let’s examine the case of Chavez-Ramirez v. INS as an example. In that case, the petitioner became an LPR in 1968. In 1973, petitioner went to Mexico to care for her seriously ill mother. However, her mother did not recuperate quickly. Petitioner resigned from her work in the U.S. in order to continue to care for her mother. In 1976, petitioner’s sister was finally able to take care of their mother. In 1978, petitioner tried to return to the U.S. The Court found that petitioner abandoned her residence in the U.S. because she failed to return in 1976 when it was no longer necessary for her stay with her mother. Had she returned within a reasonable period in 1976, petitioner would not have abandoned her residence.
The rules on abandonment allow an alien to reasonably explain his travels abroad. If you frequently travel abroad you should always be prepared to explain your trip to CBP and document your ties in the U.S. and your activities abroad to ensure a trouble-free reentry.
