DOS Rules for Abandonment of Permanent Residency

Abandonment of LPR status

 

Introduction to Abandonment of Permanent Residency

In order for a lawful permanent resident (LPR) to maintain his or her permanent resident status, he or she must retain the intent to live in the United States. An LPR may depart the United States temporarily and retain his or her LPR status; however, an LPR who departs the United States must retain the intention to reside in the United States for the entirety of his or her temporary trip abroad. If it is found that a departure was not temporary, the alien's LPR status will be considered to have been “abandoned.” The abandonment of LPR status results in the loss of status and leaves the alien subject to removal from the United States. In this article, we will discuss the concept of “abandonment” of LPR status and the rules regarding abandonment found in the pertinent statutes, regulations, and in the Department of State's (DOS's) Foreign Affairs Manual (FAM) (with a focus on the DOS criteria). To read about important administrative and judicial precedent on how the Board of Immigration Appeals (BIA) and the federal courts have interpreted issues involving the abandonment of LPR status for removal purposes, please see our full article [see article].

Defining Lawful Permanent Resident Status

Section 101(a)(20) of the Immigration and Nationality Act (INA) defines the term “lawfully admitted for permanent residence” as meaning having “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status having not changed.” In short, this provision defines an LPR as someone who:

Has been granted an immigrant visa (whether through consular processing [see category] or through adjustment of status [see category]); and
Continues to maintain lawful permanent resident status.

Under section 101(a)(27)(A) of the INA, a LPR who is returning from a “temporary visit abroad” is defined a “special immigrant.” In such cases, a returning LPR will not be considered to be “seeking admission” as would most other aliens. However, section 101(a)(13)(C) of the INA lists the circumstances in which a returning alien who had been lawfully admitted for permanent residency shall be regarded as seeking admission. Under section 101(a)(13)(C)(i), a returning alien who was granted LPR status but who has “abandoned or relinquished” his or her permanent resident status shall be regarded as an alien seeking admission. Under section 101(a)(13)(C)(ii), an alien who was granted LPR status but who has been absent from the United States for “at least 180 days” shall be regarded as an alien who is seeking admission. However, being regarded as an alien seeking readmission does not constitute a finding of the abandonment LPR status, because these are distinct issues. It is possible that an alien who has been absent for a continuous period of 180 days may be found to have abandoned his or her LPR status if the evidence indicates that he or she did not leave with the intention of maintaining his or her residency in the United States.

Please see our full article to learn about when a person who was admitted for lawful permanent residency shall be regarded as an alien seeking admission [see article].

Distinguishing the Concept of “Abandonment” from “Interruption”

It is important to note that the concept of “abandonment” of LPR is distinct from the concept of “interruption” of permanent residency. A finding of “interruption” of permanent residency, discussed in sections 316(b), 316(c), and 317 of the INA, occurs in the context of a naturalization application. If a permanent resident is absent from the United States for certain periods, his or her permanent residency may be found to have been interrupted. A finding that status was interrupted resets the clock on the applicant's accrual of continuous presence for purpose of naturalization eligibility. However, so long as the departure(s) in question was or were temporary in nature, a finding that permanent residency was interrupted will not necessitate a finding that LPR status was abandoned.

To learn more, please see our full article to learn about interruption of LPR status for naturalization purposes [see article].

Regulations and the Foreign Affairs Manual on Abandonment of Permanent Residency

The INA does not provide any explicit rules regarding the abandonment of LPR status. Therefore, we must rely upon the relevant Department of Homeland Security (DHS) and Department of State (DOS) regulations in conjunction with the DOS's Foreign Affairs Manual (FAM) and pertinent administrative and judicial precedent to examine how LPR can be abandoned.

9 FAM 502.7-2 [link] provides guidance to DOS officers on determining whether a person who was admitted as an LPR abandoned his or her LPR status. While the DOS and the DHS use many of the same principles in determining whether LPR status was abandoned, it is important to note that the guidance in the FAM is only binding on DOS officers. The FAM section builds upon DOS regulations found in 22 C.F.R. 42.22.

Under 22 C.F.R. 42.22(a), an alien who was accorded LPR status and who is seeking reentry into the United States as an LPR under section 101(a)(27)(A):

1. The alien was in lawful permanent resident status at the time of his or her departure;
2. The alien intended to return to the United States when he or she departed and did not abandon this intention;
3. The alien is returning to the United States from a temporary visit abroad. If the stay was protracted, the protracted nature of the stay was caused by circumstances beyond the alien's control for which he or she was not responsible.

It is important to note that the regulations proscribe no specific time limit that would automatically lead to an alien's stay abroad resulting in the abandonment of his or her LPR status. Rather, the emphasis, in 22 C.F.R. 42.22(a)(2), is on the alien's intent when departing and whether the alien maintained the intent to return while abroad. 22 C.F.R. 42.22(a)(3) requires that the stay abroad have either been temporary or that the alien demonstrates that, if it was “protracted,” the protracted nature of the stay was caused by circumstances beyond the alien's control that he or she was not responsible for.

Evidence for Demonstrating Continued Residency after Absence of One Year or More

9 FAM 502.7-2(a) sets forth the rules for when an LPR who has remained outside the United States for more than one year may be eligible for returning resident status. First, the alien must have departed with the intention of returning to an unrelinquished residence (and have maintained that intention for the duration of his or her stay abroad). Second, the alien's stay abroad “was for reasons beyond the alien's control and for which the alien was not responsible.”

Understanding “Temporariness”

9 FAM 502.7-2(b)(5) defines explains that “[t]he term 'temporary' cannot be defined in terms of elapsed time alone.” Rather, “the intent of the alien, when it can be determined, will control.” Citing to the Matter of Kane, 15 I&N Dec. 258 (BIA 1975) [PDF version], the FAM lists three elements that must be examined in determining whether an absence was “temporary” (paraphrased):

a. Reason for absence: There should exist a “definite reason” for traveling abroad temporarily;
b. Termination date: The visit abroad should be expected to end “within a relatively short period” that is “fixed by some early event”; and
c. Place of home or employment: The applicant must intend to return to the United States as a place of an actual home and employment when he or she departs and must maintain that intention throughout his or her entire trip abroad.

This definition of “temporary” makes it explicitly clear that an applicant may be considered to have abandoned his or her permanent residency even if he or she was not abroad for a continuous period of one year or more. For example, if it is found that the applicant left without having the requisite intention to return to the United States as a place of actual home and employment, he or she may be found to have abandoned LPR status even without having been absent from the United States for a period of one year or more.

9 FAM 502.7-2 sets forth procedures for determining whether a permanent resident who was absent for one year or more has abandoned his or her LPR status. In 9 FAM 502.7-2(b)(3), the FAM lists evidence that may be provided to support the assertion that he or she had and maintained the intent to retain a U.S. residence (including, but not limited to):

a. A driver's license issued within the past year with the same address as recorded on the Form I-94, Arrival and Departure Record;
b. The name and address of employer and evidence that a salary has been paid within a reasonable period of time;
c. Evidence of alien's children's enrollment in a U.S. school;
d. Evidence that an extended visit abroad was caused by unforeseen circumstances;
e. Evidence of a predetermined termination date of departure;
f. Evidence of having filed U.S. income tax return(s) for the past year(s); or
g. Evidence of property ownership (real or persona) in the United States.

No single factor is determinative in demonstrating that the alien departed the United States with the intent to maintain his or her residency and retained that intention until seeking reentry. Rather, it is incumbent on an alien to compile as much evidence as possible to demonstrate his or her continuous intent to maintain his or her residence in the United States.

9 FAM 502.7-2(b)(4) lists evidence that the DOS may use to indicate abandonment of residence in the United States (including, but not limited to):

a. Extended or frequent absences from the United States;
b. Disposition of property or business affiliations in the United States;
c. Family, property, or business ties abroad;
d. Conduct outside of the United States (e.g., employment by a foreign employer, voting in foreign elections, running for political office in a foreign country, etc.); or
e. Failure to file U.S. income tax returns.

Evidence of No Interruption May Support Finding of No Abandonment

9 FAM 502.7-2(c)(6) explains that if an LPR demonstrates that an absence from the United States was for a specific purpose that would not constitute interruption of LPR status for naturalization purposes, it “may be considered prima facie evidence that the alien” did not abandon permanent resident status. This is because it “would be inconsistent to permit time abroad in such circumstances to be applied to residence for naturalization purposes but to interpret that same time abroad” as constituting the abandonment of LPR status. The FAM lists the cases in which a prolonged absence from the United States would not constitute the “interruption” of LPR status:

a. Being the employee under contract with a U.S. Government or U.S. institution of research recognized by the Secretary of Homeland Security [see list];
b. Being the employee of a U.S. firm or corporation engaged in the development of foreign trade and commerce of the United States or a subsidiary thereof, more than 50 percent of whose stock is owned by a U.S. firm or corporation;
c. Being the employee of a public international organization of which the United States is a member by treaty or statue and by which the alien was not employed until after being lawfully admitted for permanent residence;
d. Being authorized to perform the ministerial or priestly function of a religious denomination having a bona fide organization within the United States; or
e. Being engaged solely by a religious denomination or interdenominational mission organization having a bona fide organization within the United States as a missionary, brother, nun, or sister.

If an LPR demonstrates that his or her prolonged absence was for one of these reasons, the FAM indicates that the absence would be considered to constitute neither the interruption of LPR status for naturalization purposes nor the abandonment of status. However, it is important to note that even if the applicant was approved to preserve LPR status while working abroad after filing the N-470, Application to Preserve Residence, for naturalization purposes, the DHS may still find that the alien abandoned his or her permanent residence upon return if other factors suggest that the alien abandoned his or her intent to preserve residence in the United States.

Visitor Status Does Not Necessarily Constitute Abandonment

Under 9 FAM 502.7(b)(6), if an alien relinquishes his or her Form I-551 in order to return to the United States in visitor status, this does not necessarily mean that the alien abandoned his or her permanent resident status. This is relevant in situations in which a permanent resident needs to return to the United States expeditiously, but cannot use his or her current Form I-551 to do so. An alien in this situation should consult with an experienced immigration attorney for guidance in determining whether he or she may have issues demonstrating that he or she did not abandon permanent resident status. Please see the section in our article about permissible activities on B2 status in order to learn how a permanent resident may use a travel visa to return to the United States expeditiously [see section point 10].

Work for a U.S. Employer Abroad

9 FAM 502.7-2(c)(2) explains that, in the “absence of contrary evidence,” an alien who works abroad for a U.S. employer will generally not be considered to have abandoned permanent resident status. As an example where “contrary evidence” exists, the FAM discusses a situation where an alien “who lives and works in a foreign country and merely returns to the United States for brief visits periodically” may be considered to have abandoned permanent resident status.

Work as a Religious Missionary Abroad

9 FAM 502.7-2(c)(3) explains that a permanent resident who is performing missionary work abroad for a “recognized” U.S. religious denomination will not be considered to have interrupted his or her permanent resident status. Accordingly, an LPR performing such religious missionary work abroad would not be considered to have abandoned his or her status.

Studying Abroad

9 FAM 502.7-2(c)(4) explains that permanent resident students who are studying abroad “should present evidence of a definitive graduation date.” Provided that the student can present evidence of a receipt of a degree within a definitive time, “even prolonged absences from the United States may be considered temporary.” However, other evidence may be considered in determining whether a permanent resident student abandoned his or her permanent resident status. This evidence may include, but is not limited to:

Whether the student returns to the United States at the end of each academic term;
Whether the student has family living in the United States;
Evidence of property ownership in the United States;
Evidence of a bank account in the United States.

Children Under the Age of 16

Under 9 FAM 502.7-2(d)(1), a child under the age of 16 is generally “not considered to possess a will or intent separate from that of the parents with regard to a protracted stay abroad.” Therefore, in most cases, if the child's parent is found to have abandoned his or her LPR status, the child too will be considered to have abandoned LPR status. However, the guidance leaves open the possibility that the DOS may conclude “that the parents have a separate intention for the child to return to the United States for residence.

9 FAM 502.7-2(d)(2) cites the example of a child from Bermuda who was adopted and became an LPR along with the adoptive mother. 10 months after the adoptive mother and child took up residency in the United States, the mother returned the child to Bermuda because she was unable to work and care for the child at the same time. The child remained in Bermuda for six years and then sought admission into the United States as a special immigrant (LPR) under section 101(a)(27)(A). The government found that the protracted stay abroad was for reasons beyond the child's control and, therefore, that the child had not abandoned LPR status.

When Abandonment May Arise as an Issue

8 C.F.R. 211.1 sets forth the rules for returning LPRs seeking reentry into the United States. In general, an LPR may use a valid, unexpired immigrant visa (8 C.F.R. 211.1(a)). A returning LPR may present a valid, unexpired Form I-551, Permanent Resident Card if he or she is seeking reentry from a temporary departure that was less than one year in length (8 C.F.R. 211.1(b)).1 If an LPR seeks reentry into the United States after having remained outside the United States for longer than one year, or if he or she has remained beyond the validity of his or her reentry permit, the LPR must apply for an SB-1 immigrant visa to reenter as a returning LPR [see article].2 In considering whether an alien is eligible to reenter the United States after a trip abroad that is more than one year, DOS examine the case to determine if the alien's departure was temporary and that the alien did not abandon his or her permanent resident status (see 9 FM 202.2-5(g)).

An alien who is found to be present in the United States after having abandoned his or her permanent resident status is removable for having been inadmissible at the time of entry under section 212(a)(7)(A)(i)(I) (for having been, at the time of the application for admission, not in possession of a valid entry document). Because applicants for naturalization are required to list all of their departures in their naturalization applications (required by section 316 of the INA), such applicants should consult with an experienced immigration attorney to determine if any such departures may suggest to the DHS that their LPR status was abandoned.

It is important to note that the mere signing of a Form I-407 to relinquish LPR status does not necessarily result in abandonment if the alien did not have the intent of abandoning his or her status.3

In U.S. v. Yakou, 428 F.3d 241 (D.C. Cir. 2005) [PDF version], the D.C. Circuit held that it could find that LPR status was abandoned even where the alien never signed a Form I-407 or was found to have abandoned his residence in immigration proceedings.

Conclusion

If an LPR intends to depart the United States for a long period, he or she should consult with an experienced immigration attorney prior to departure. An experienced immigration attorney will be able to advise on whether the described absence might bring about abandonment concerns, and also advise the LPR on compiling evidence with regard to the trip to demonstrate later (if necessary) that the departure was temporary in nature. So long as an alien has a “colorable” claim to LPR status, the burden will be upon the DHS to demonstrate that the alien abandoned his or her LPR status if a case goes to immigration proceedings. If an alien faces questions about whether he or she abandoned permanent residency, or immigration proceedings for abandonment, he or she should consult immediately with an experienced immigration attorney for guidance on whether he or she may be able to rebut the charges.

To learn about administrative and judicial precedent on abandonment, please see our full article [see article].

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  1. If the LPR was absent for longer than one year, 8 C.F.R. 211.1(b) allows him or her to still use a valid, unexpired Form I-551 if he or she is a “crewmember regularly serving on board a vessel or aircraft of United States registry” who is seeking reentry “after any temporary absence connected with his or her duties as a crewman.” 8 C.F.R. 211.1(a)(6) allows for the presentation of an expired Form I-551 if the absence was due to the LPR being a civilian or military employee of the U.S. Government “who was outside the United States [under] political orders” (or his or her spouse or child who resided abroad with him or her).
  2. https://travel.state.gov/content/visas/en/immigrate/returning-residents.html [see link]
  3. Matter of Wood, Case No. A24 653, 925 (BIA Jan, 13, 1992) reported in 69 No. 16 Interpreter Releases 512-14 (Apr. 27, 1992)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1172-74, Print. Treatises & Primers.