Individuals who live outside the United States, may find it to be difficult to maintain their lawful permanent residence (i.e., their green card), regardless of how difficult it was for them to obtain it, due to the associated tax and travel consequences of maintaining their status. Abandonment of lawful permanent resident (“LPR”) status is an irrevocable act.

LPRs are required to reside in the United States. If an LPR wishes to reside outside of the U.S., merely returning to the U.S. once a year or even a few times a year will not “automatically revalidate” a green card. Department of Homeland Security (DHS) may determine that their LPR status has been abandoned. Remaining outside the U.S. for 12 or more consecutive months may trigger a determination of abandonment of LPR status. See 8 CFR 211.1(a)(2). Certain airlines may even refuse to board LPRs who have been absent from the U.S. for over 12 months. If a LPR wants to spend a more than 12 consecutive months outside the U.S., they can consider applying for a re-entry permit prior to their departure from the U.S. The re-entry permit must be submitted to USCIS while the LPR is still in the U.S. and the LPR must attend their biometrics appointment in the U.S. The re-entry permit will allow the LPR to maintain their LPR status while residing abroad for up to two years. Without a re-entry permit as proof of the intent to maintain status, a Customs and Border Protection (CBP) officer at a U.S. port of entry may determine that permanent residency has effectively been abandoned and may seek to confiscate the green card.

Please note that LPRs do not have to automatically surrender their green cards even if they are asked to do so. An LPR does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued and the government must prove abandonment by clear, unequivocal, and convincing evidence, a higher evidentiary standard than clear and convincing. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). To abandon LPR status, the LPR must file Form I-407, Record of Abandonment of Lawful Permanent Resident Status. Form I-407 must be signed voluntarily. Neither failure to sign a Form I-407 nor abandonment is grounds for detention. If a LPR refuses to sign Form I-407, hey must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status or not. If a CBP officer raises the issue of abandonment, the LPR who does not wish to abandon LPR status can offer up evidence of ties to the United States (e.g., a home, a job, family, debt, membership in associations, etc.); explain the purpose of their visit outside the United States and the expected termination date of that visit or explain the facts that made it impossible to return by a date certain. See Matter of Kane, 15 I&N Dec. 258 (BIA 1975). At this stage, the individual must demonstrate by a preponderance of the evidence (which is more likely than not (more than 51%)) that he/she did not abandon their LPR status. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). The CBP officer must consider the totality of the circumstances. If the officer remains unconvinced, the individual can ask for a hearing before an immigration judge. If the green card is confiscated, the CBP officer must provide alternative evidence of LPR status (e.g., an I-94 and/or passport stamp that says, “Evidence of Temporary Residence.”). The mere signing of a Form I-407 is not conclusive evidence that an individual intended to abandon their residency. See Matter of Wood, No. A24-653-925 (BIA Jan. 13, 1992), reported in 69 Inter. Rel. 512 (April 27, 1992). An individual can still request a hearing before an immigration judge to determine whether their LPR status was abandoned. LPR status will be maintained until a final order of removal is issued.

LPRs who do not wish to potentially suffer through any of the above when trying to return to the United States after an extended stay abroad and who have no desire to actually reside in the United States, can make a voluntary and irreversible decision to file Form I-407. There is no government filing fee for processing Form I-407. Form I-407 must be used by LPRs who are either outside the U.S. or at a Port of Entry who want to abandon their LPR status. It may also be used by individuals who were admitted into the U.S. as nonimmigrants or paroled into the U.S. after abandoning a prior LPR status, and who now want to record that prior abandonment of LPR status. Form I-407 requires basic biographical information; data on the LPR’s last departure from the U.S.; a statement of the reason for the abandonment of LPR status; and a submission of the original green card along with the Form I-407.

The decision to abandon one’s LPR status has many consequences, among which are immigration and tax consequences. Once abandonment of LPR status occurs, the individual will lose the ability to sponsor any family members and in order to visit the United States, may need to apply for and obtain a nonimmigrant visa. However, it is possible to regain LPR status in the future through an entirely new green card process. The abandonment will not be considered material. It is extremely important to consult with an immigration attorney before deciding to abandon the green card.