Kara Sears
Permanent residence is an immigrant status that allows a person to reside and work in the U.S. indefinitely. However, certain actions or situations can lead a green card holder to lose their permanent resident status. Understanding these actions and conditions is crucial for anyone who holds or aspires to this status. One of the most common reasons for losing permanent residence involves spending an extended period outside the United States. If a green card holder leaves the U.S. for more than a year without obtaining a returning resident visa, they risk being considered to have abandoned their lawful permanent residence. Prolonged absence may indicate that the green card holder is no longer interested or intends to reside in the United States permanently. Other ways to lose permanent resident status include certain criminal convictions, declaring oneself a nonimmigrant on tax returns, and voluntarily surrendering one's status.
| Characteristics | Values |
|---|---|
| Extended period outside the United States | Absence from the US for more than 6 months to a year can lead to a rebuttable presumption of abandonment. |
| Intent to live abroad permanently | If a CBP officer determines that an individual intended to live outside the US, they can be put in removal proceedings. |
| Non-compliance with US tax laws | Failing to file income taxes with the IRS while living outside the US can trigger removal. |
| Criminal convictions | Residents who fail to remove residency restrictions before their two-year green card expires are subject to deportation. |
| Fraud | Lying to obtain immigration benefits may result in the loss of permanent resident status. |
| Voluntarily surrendering status | Filing Form I-407, Record of Abandonment of Lawful Permanent Resident Status, is the easiest way to lose permanent residence status. |
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What You'll Learn
Committing fraud to obtain immigration benefits
Under the Immigration and Nationality Act (INA), an applicant may be deemed inadmissible if they obtain immigration benefits through fraud or willful misrepresentation. While fraud and willful misrepresentation are distinct, they share common elements, and fraud encompasses all the elements of willful misrepresentation plus two additional elements.
In cases of fraud, it must be established that the individual intended to deceive and that a U.S. government official believed and acted upon the false representation. This can be difficult to prove, especially in attempted fraud cases where the fraud was not successful. However, even if intent to deceive cannot be established, the presence of other elements of fraud or willful misrepresentation may still result in a finding of inadmissibility.
Examples of fraud to obtain immigration benefits include submitting false information, such as misrepresenting material facts or committing marriage fraud. Committing fraud can have severe consequences, not only for the individual but also for any beneficiaries.
It is important to note that losing a Green Card, which serves as proof of lawful permanent residence status, does not automatically result in the loss of underlying status. In such cases, individuals can apply for a replacement card. However, if an individual's lawful permanent residence is rescinded due to fraud or other inadmissibility grounds, they will lose their Green Card and may be placed in removal proceedings.
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Abandoning residency by spending long periods outside the US
Lawful permanent residents (LPRs) can lose their status through unintentional green card abandonment, often caused by extended absences from the United States. While temporary travel for vacation, family visits, or business is allowed, staying abroad for too long may jeopardize permanent residency.
There is no definitive time limit that guarantees you will retain your status, but absences of six months or more may disrupt the continuous residency required for naturalization. If an LPR is absent from the U.S. for over 180 days, they are treated as seeking readmission and are subject to grounds of inadmissibility. Abandonment may be found to occur in trips of less than a year if it is believed that the individual did not intend to make the U.S. their permanent residence.
If you plan on being absent from the United States for longer than a year, it is advisable to first apply for a reentry permit on Form I-131. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit’s validity without the need to obtain a returning resident visa. However, it is important to note that a reentry permit does not guarantee entry into the United States upon your return, as you must still be determined to be admissible.
If you remain outside of the United States for more than two years, any reentry permit granted before your departure will have expired. In this case, you may need to file a Form I-131A, Application for Travel Document (Carrier Documentation). This carrier documentation will allow an airline or other transportation carrier to board a lawful permanent resident bound for the United States without the carrier being penalized.
Other ways to lose permanent resident status include marriage fraud, visa fraud, and an immigration judge issuing a final removal order.
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Marriage fraud
The U.S. government defines a sham marriage as one that is entered into fraudulently to evade immigration laws. It is not enough for a couple to have a marriage ceremony and obtain a marriage certificate; they must also intend to live in a real marital relationship and establish a life together. If a couple does not intend to do so, their marriage is considered a sham.
There are several ways in which an immigration application based on marriage can be considered fraudulent. Firstly, if the marriage is not legally valid, for example, if one of the spouses is already married and unable to obtain a legal divorce, the application is considered fraudulent. Secondly, if a couple has been married for less than two years when their green card is approved or when they enter the U.S. on an immigrant visa, they are subject to a two-year testing period called "conditional residence". During this period, they must prove that their marriage is bona fide and ongoing by submitting a jointly filed Form I-751. If they fail to do so or if their marriage ends in divorce or annulment, it may be considered a fraudulent marriage.
Additionally, if an individual seeks benefits through a sham marriage, they may be charged with inadmissibility for fraud or misrepresentation of a material fact. If they are admitted based on the sham marriage, they may be found removable for fraud or misrepresentation at the time of entry.
It is important to note that the courts evaluate the legitimacy of a marriage based on the couple's intention to establish a life together. If the couple truly intended to build a life together, the marriage may not be considered fraudulent, even if they also intended to obtain immigration benefits.
The consequences of marriage fraud can be severe. Individuals involved in marriage fraud may lose their permanent resident status and be placed in removal proceedings. They may also face bars of inadmissibility upon departing from the United States, making it difficult for them to re-enter the country.
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Visa fraud
Permanent residence is a status that allows a person to reside and work in the US indefinitely. This status can be lost in several ways, including through abandonment, certain criminal convictions, and failure to comply with tax laws. One common way to trigger abandonment is by remaining outside of the United States for an extended period. Generally, spending more than 12 months outside the country will result in a loss of permanent resident status, although shorter absences can also trigger abandonment if a Customs and Border Protection (CBP) officer determines that the individual intended to live outside the US.
Now, regarding visa fraud, it is important to note that every visa applicant is required to be admissible to the US. If the applicant is inadmissible, the visa will be denied. Visa fraud can involve various illegal activities, such as submitting false or fraudulent visa applications, exploiting visa programs, human smuggling, human trafficking, and money laundering. In one case, two Texas residents were indicted for operating a visa racket, conspiracy to defraud the United States, visa fraud, and money laundering. They were alleged to have placed false advertisements for non-existent jobs and received payments from visa seekers to make the non-existent jobs appear legitimate.
To combat visa fraud and protect the integrity of the immigration process, the US government has implemented measures such as the USCIS Tip Form, where anyone can report suspected immigration benefit fraud and abuse. Reports of human smuggling, human trafficking, national security concerns, or public safety threats can also be directed to the Homeland Security Investigations (HSI) Line or the National Human Trafficking Hotline. Additionally, suspected fraud, immigration scams, and the unauthorized practice of law related to immigration courts and appeals processes can be addressed through the Executive Office for Immigration Review's Fraud and Abuse Prevention Program.
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A removal order from an immigration judge
If an individual receives a removal order, they have the right to appeal within 30 days. During this time, the order is not considered final, and ICE is not allowed to remove the individual from the country. If an appeal is not filed within the 30-day period, the order becomes final, and the individual is expected to leave the country. It is possible to be granted voluntary departure, which allows the individual to leave the country on their own terms, although they are still considered deported.
In some cases, individuals may be provided with "deferred action," which allows them to temporarily remain in the United States for humanitarian reasons or to seek alternative relief. Additionally, an immigration judge may terminate or dismiss removal proceedings in certain circumstances, such as when an individual has obtained lawful permanent residence after being placed in removal proceedings.
It is important to note that if an individual does not attend their removal hearing, the immigration judge may order removal in absentia, meaning "in their absence." Therefore, it is crucial to attend the hearing and understand the options available, including the right to appeal and seek alternative relief.
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Frequently asked questions
Voluntarily surrendering your status by filing Form I-407, Record of Abandonment of Lawful Permanent Resident Status, is the easiest way to lose your permanent residence status.
Generally, spending more than 12 months outside the US will result in a loss of permanent resident status. A re-entry permit is usually valid for up to two years.
An immigrant who has lost permanent resident status must obtain a new immigrant visa to return to the US. In most cases, this means that the intending immigrant must re-apply.
Failing to file income taxes with the IRS while living outside the US can trigger removal. Additionally, certain criminal convictions can lead to deportation proceedings, resulting in the loss of permanent resident status.
Losing a green card is not the same as losing permanent resident status. When a permanent resident loses their green card, they lose their proof of status, but they do not lose their underlying status. They will need to replace the card.
