Involuntary abandonment of legal status in the United States

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Dev B. Viswanath, Esq. (Photo courtesy of Dev B. Viswanath, Esq.)

Many green card holders can be at risk of abandoning their legal resident status if they are unable to travel back to the U.S. within 1 year of their departure. While it is true that Customs & Border Patrol have a policy of allowing residents back with a valid green card even if they have been out for more than a 1 year, because of the Covid 19 virus, and there are opportunities to apply for an SB-1 Returning Resident visa, anyone who has been out of the US for more than a year runs a risk of losing their status. This was definitely the case before the covid 19 pandemic and will likely be the case after the world has a grip on the pandemic.

Unfortunately, under normal circumstances, if a green card holder does not return to the U.S. within one-year of traveling abroad they may be found to have abandoned their green card. Involuntary abandonment of legal status happens when a green card holder stays abroad for a one-year or more without intention to do so. When the resident attempts to enter the U.S. after their extended trip abroad, immigration officers at the port of entry will determine whether or not they have abandoned their status in the U.S. If the immigration officer decides that the legal resident has abandoned their status, the officer can take their green card away at that moment. The person will then have the choice to either withdraw their application and the green card will be taken or to fight the case in Immigration Court removal proceedings, for deportation. If they succeed then the green card will be reinstated, if not, they will be ordered removed. In reality, any trip that the lawful resident takes which keeps them out of the United States for more than 6 months, puts them at risk to questioning about what they were doing abroad. After being 6 months out of the United States, the green card holder is considered to be seeking admission. This gives a CBP officer the opportunity to see if the foreign national has in fact abandoned their status, whether intentionally or not.

One way to avoid issues with green card abandonment is to apply for and obtain a reentry permit. The reentry permit is valid for up to two years unlike a green card which is only valid for return after time abroad of up to one year. By obtaining a reentry permit before departing, the travel document helps show an officer at the port of entry an individual’s intent to return to the United States.

Another option is to file the SB-1 returning resident visa, but that is after the 1 year has passed and an individual is already considered to have abandoned his residence. The SB-1 will allow for the individual to return to the US as a green card holder one time to re-establish residence. There is a very high threshold that the individual must show a consular officer to obtain an SB-1 visa.

In order to avoid green card abandonment, green cards holders should try to keep trips abroad to less than 180 days and keep strong ties to their U.S. homes. Departures of one year or more will also interfere with the continuous residency requirement when applying for naturalization. If a permanent resident is outside the United States for one year or more, that will interfere with the continuous residence requirement for naturalization even if they have traveled with a valid reentry permit.

Although currently traveling can be risky, green card holders need to be aware of their green card status and the period of time that they are outside of the United States. In light of the coronavirus and fear of travel, anyone who is in danger of being outside the United States for more than 1 year, should contact an attorney and or the US consulate nearest to them immediately to discuss options or to see if the CBP memo is still in effect.

Attorney Dev Banad Viswanath will be in India, working out of the Bangalore and Mumbai offices from September 27th through October 15th, if anyone would like to schedule a consultation to discuss their immigration or visa matters.

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