US Permanent Residents – What happens when you’re away from the US for too long?

US Permanent Residents – What happens when you’re away from the US for too long?

Lawful Permanent Residents – It’s not always permanent.

These days, we are all seeing the changes that have occurred in our lives due to the Covid-19 pandemic, and I have seen some areas of our US visa and nationality practice change now that we have been through – and hopefully are coming out of – this pandemic.

In March 2020, for most of us, our lives stopped in their tracks. For many, that may have long-lasting effects. Many people have been contacting us this year who are US Lawful Permanent Residents (“LPR”) – colloquially known as “green card holders” – who have been outside the US since early 2020.

The Basics

No matter how someone became an LPR, whether through marriage to a US citizen, through employment sponsorship or their extraordinary ability, they have the same obligations once they are an LPR. The most fundamental obligation is in the name – they have to intend to reside permanently in the US.

The Benefits of Being an LPR & What It Doesn’t Provide

Being an LPR allows a person to permanently reside in the US, but it can be lost if they are not physically present in the US for more than 12 months. Just being an LPR does not provide for US citizenship unless a person qualifies to naturalize as a US citizen.

LPRs are still subject to grounds of deportation. They can, for example, be deported for a drug offence. LPRs are given full constitutional due process rights as to their admission to the US as well as keeping other constitutional rights, including First Amendment rights. Finally, no non-US citizen has an automatic right to be admitted to the US except for LPRs in some limited circumstances.

Abandonment of Lawful Permanent Residency Status: Intentional and Unintentionally

The law relating to whether a person has lost their green card status is complex and there is much discretion involved in deciding whether someone has lost their LPR status.

There is a somewhat bright-line test that indicates that if an LPR is out of the US for 12 months or more they can be found to have abandoned their LPR status. Conversely, if a person enters the US within every 12 months but their life situation indicates that they are living outside the US (e.g. primary residency outside the US, employment abroad) a person can also be found to have abandoned their Permanent Residency status if an Immigration Officer at the border believes they do not have circumstances that demonstrate that the LPR is or intends to live permanently in the US.

If an Immigration Officer believes an LPR is not maintaining an intention to permanently reside in the US, they can ask them to sign a form indicating that they intend to abandon their LPR status or, if the LPR wishes to contest that, they can be paroled into the US to appear before an Immigration Judge, who will make a determination whether they are still an LPR. Both of these options are fraught with uncertainty, and it is advisable to obtain specific advice prior to returning to the US after an extended absence from the US.

An LPR may be able to preserve their LPR status if they apply for a Re-Entry Permit before leaving the US which is basically a document that lets the US government know that they will be gone for a while but intend to return. Having a Re-entry Permit upon re-entering the US will let the Immigration Officer know that the person still intends to come back to the US but there is discretion if the facts of a person’s situation indicate they are no longer admissible to the US or that they do not have an intention to reside in the US.

US Customs and Border Protection (CBP), the agency that makes the decision on whether someone should be admitted to the US at the border or at an airport of entry, issued an advisory via its Carrier Liaison Program that reminded airline carriers of its current policy on boarding LPRs. CBP policy allows passengers to be boarded a flight to the US if the passenger possesses:

  • An unexpired LPR card may be boarded without any additional documents
  • A valid and unexpired Re-Entry Permit (I-327)
  • An expired LPR card (“green card”) provided the card was issued with a 10-year expiration date
  • An expired LPR card with an extension sticker (before January 2021) or an original form I-797 Receipt Notice from the US Citizenship & Immigration Services for an application to renew the green card dated within 12 months of the expiry of the green card
  • An expired Conditional Resident green card that had a two-year validity if the passenger has a form I-797 receipt notice for the form I-751 Petition to Remove Conditional Resident status
  • A valid and unexpired Returning Resident SB-1 Visa

The airlines are directed that they should not determine whether a person is admissible to the US, only whether a person carries the required documents to board a flight to the US. Upon landing, the passenger will undergo inspection and a CBP Immigration Officer will determine whether they may be admitted as an LPR.

This blog is informational in nature and must not be considered legal advice. If you require specific advice on entering the US after an extended absence from the US, please contact our Principal Lawyer, Janice Flynn at janice@flynnhodkinson.com.