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Are You Still a Lawful Permanent Resident?
Contributor: Van T. Doan
After a year, a noncitizen is presumed to have abandoned his or her LPR status.
Abandonment of Lawful Permanent Resident Status
Often, individuals who come to the United States and who become lawful permanent residents (LPR) have occasion to travel back to their home country or another country for business, family purposes, or some other legitimate reason. They may intend to be gone for a limited time, only to find that circumstances demand that they remain longer—sometimes more than a year.
Although the Board of Immigration Appeals has held that no particular length of time constitutes a clearly temporary absence, after a year, a noncitizen is presumed to have abandoned his or her LPR status. Because the noncitizen didn't intend to be outside of the United States for more than a year, he or she likely failed to take steps to preserve LPR status. The noncitizen may return to the United States only to discover that he or she cannot re-enter the country with a permanent resident card alone.
The noncitizen may be detained and questioned at the airport by U.S. Customs and Border Protection (CBP). If CBP finds that he or she has abandoned his or her residence in the U.S., the noncitizen will be issued a Notice to Appear and placed in removal proceedings. This typically involves being charged by the Department of Homeland Security with being inadmissible at the time of entry to the country, which he or she must then successfully challenge before an immigration judge in order to be permitted to retain LPR status.
If, however, the noncitizen takes certain steps before attempting to re-enter the country, he or she may be able to obtain an SB-1 ("returning resident" special immigrant visa) to gain re-entry, which is often quicker and less stressful than challenging removal proceedings.
There are three essential criteria for eligibility for an SB-1 special immigrant visa.
Who is Eligible for an SB-1 Visa?
A "special immigrant" for purposes of an SB-1 visa is an immigrant who was lawfully admitted to the United States for permanent residence, who is returning to this country from a temporary visit abroad. What exactly does this mean? Breaking this definition down, there are three essential criteria for eligibility for an SB-1 special immigrant visa.
The noncitizen applicant must have had LPR status at the time of their departure from the United states. He or she must have had the intention to return to the United States, and must not have abandoned this intention. Lastly, the noncitizen must be returning to the U.S from a temporary visit abroad. If the stay was a protracted one, the reasons for the extension of the stay must have been beyond the noncitizen's control, and he or she must not have been responsible for these reasons.
While the question of LPR status at the time of departure is a clear, yes-or-no question, the questions of the noncitizen's intention to return, and the circumstances compelling the protracted absence from the U.S. are not so cut-and-dried.
In addition to needing to submit Form DS-117 (Application to Determine Returning Resident Status) along with an application fee, the noncitizen must present an original valid passport, permanent resident card, and a re-entry permit (if applicable). In addition, the applicant will need to document evidence that the stay outside the U.S. was beyond his or her control and evidence of his or her connections to this country and intentions to return to the U.S.
Circumstances which could support ties to the U.S. could include length of residence in this country; employment or educational enrollment; U.S property ownership; and social and family ties here. In addition to presenting this information in written form, the applicant will probably have to be interviewed by a consular officer, who will also examine the applicant's ties to the home country before determining whether the applicant is eligible for an SB-1 visa and retention of LPR status.
Preserving LPR Status When Traveling Abroad
If you are a lawful permanent resident and need to travel outside the country, you should be aware of how to protect your LPR status if there is any chance at all you could spend more than a year outside of the United States. If you know your stay abroad will be extended, apply for a re-entry permit before leaving the U.S. If you are unexpectedly detained abroad, contact an experienced immigration attorney in the U.S. as soon as possible to apply for an SB-1 visa. And if you return without having taken these measures, under no circumstances should you sign a form called an Abandonment of Lawful Permanent Resident Status, which may be presented to you when you attempt to re-enter the country.
If you would like more information about preserving your LPR status when traveling abroad, please contact Howard County, MD immigration lawyer Van T. Doan to learn the most effective means to protect your status.
Categories: Immigration Law
