MAINTENANCE OF LAWFUL PERMANENT RESIDENT STATUS

101(a)(20), (13)(C) of the Immigration and Nationality Act of 1990, Pub. L. No. 101-649, __ Stat. __
8 U.S.C. 1101(a)(27(A), 8 C.F.R. 211.1(b)(1)(A) (1998).

(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

Lawful permanent resident status is conferred by lawful admission to the United States as a resident foreign national. Although many individuals believe that once lawful permanent resident status is conferred, it is without exception and of perpetual duration; this myth is incorrect and could not be farther from the truth. United States Immigration law requires that any alien admitted for lawful permanent residency maintain an intent to reside permanently in the United States. Hence, such issues and questions regarding the maintenance or abandonment of status usually arise when the lawful permanent resident departs the United States, and thereafter makes an application for admission at a United States Port of Entry, usually at airport. At that time, the U.S. INS may question and interrogate the alien to determine if he has, either explicitly or implicitly, manifested an intent to renounce or abandon permanent resident status.

Accordingly, any lawful permanent resident who spends extended periods of time outside the boundaries and jurisdiction of the United States ought to take special precautions and observations in order to preserve his lawful permanent resident status. A prolonged absence from the United States may present problems upon any attempted reentry, as the U.S. INS may consider that the returning resident has "abandoned" his status, and must therefore demonstrate his manner of admission to the United States..

When a lawful permanent resident reenters the United States after an absence of more than six (6) months or 180 days, the immigration laws mandate that such individual is considered an "applicant for admission." The U.S. INS may require "proof" that he has not abandoned his permanent residency by demonstrating fixed ties to this country (family, property, employment, bank accounts, federal and state income taxes, memberships/organizations, etc.). If the U.S. INS determines that an individual is an "applicant for admission" and he cannot conclusively demonstrate his intention to maintain his status, such individual may be detained by the U.S. INS, placed into removal proceedings, and referred to an Immigration Judge for a determination of admissibility to the United States and whether his status has been abandoned. Equally important, entries into the United States by a lawful permanent resident after an absence of less than six (6) months shall not be considered to be "admissions." As such, a re-entering permanent resident is not likely to be held to a higher standard of intention after trips of short duration.

The question of demonstrating an unrelinquished intent to reside in the United States generally depends on an examination of the permanent resident’s ties to the United States, and whether such ties are reasonably indicative of a continuing intent to return to the United States after a temporary absence abroad. A temporary visit abroad occurs only when:

  1. Visit abroad is for a period relatively short, fixed by some early event; or
  2. Visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time (e.g., taking care of an ill relative); or
  3. The alien maintians a continuous uninterrupted intention to return to the United States during the entirety of his visit, as demonstrated from objective factors (family ties, purpose of departure, property, bank accounts, business affiliations, payment of taxes, etc.).

Application Procedure

Lawful permanent residents, upon every application for admission at a U.S. Port of Entry, must produce a valid document entitling him to re-enter the United States as a lawful permanentresident. Normally, such a document takes the form of either an alien registration card or a re-entry permit. Neither document, however, confers an absolute right to re-entry or guarantees admission to the United States. The lawful permanent resident must actually intend to make the United States his primary domcile/home as demonstrated by the above referenced factors.

Once a lawful permanent resident makes a "colorful claim" to such status, the U.S. INS has the burden to establish by clear, unequivocal, and convincing evidence that the status has been abandoned. Hence, if the U.S. INS determines that a absence abroad was not temporary, that the permanent resident has few, if any ties, to the United States, it may conclude that the foreign national has abandoned his lawful permanent resident status and is not entitled to re-enter the United States as a returning resident, notwithstanding the presentation of a lawful permanent resident card or a re-entry permit. Hence, a lawful permanent resident may have his alien registration card confiscated, be denied entry, and forced to return to his last country of departure. More likely, however, the returning resident will be placed into formal removal proceedings and be forced to present his case to an Immigration Judge for review.

For more information about maintaining your lawful permanent resident status, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.