There are many cases that review whether an LPR has abandoned/or hasn’t abandoned his/her Legal Permanent Resident (LPR) status. We discuss a few of these cases as discussed byMyAttorneyUSA. The opinions do speak for themselves.
Abandonment for Leaves Less than One Year
Foreigners may lose their LPR status, may be considered to have abandoned their LPR status – even though they had an absence of less than one year. In a 1997 federal case, a foreigner lost his LPR status due to abandonment when he only spent time in the US during the summer – and worked/lived in Great Britain for most of the year – and even though he was counting on LPR status to bring his wife and daughter to the US. In Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997).
In the Singh case, the Sixth Circuit case from another case, Hana v. Gonzalez, 400 F.3d 472 (6th Cir. 2005) [PDF version]. In the Hana case, the LPR was an Iraqi citizen and national who worked and lived in Iraq to ensure the “safety of her family members.”
Ms. Hana had filed petitions for the relatives to gain LPR status in America. The Sixth Circuit distinguished the Singh case by stating that the intent of the alien must be considered based on the circumstances the alien faces.
In Singh, the alien spent most of his time in Great Britain as a matter of convenience. The alien in the Hana case stayed in Iraq to protect her family’s welfare and safety.
Children of Legal Permanent Residents
In the case of the Matter of Zamora, 17 I&N Dec. 395 (BIA 1980) [PDF version], if an LPR parent is ruled to have abandoned his/her LPR status while abroad, then the child of the LPR will also be considered to have abandoned his LPR application.
In a similar case, the Matter of Winkens, 15 I&N Dec. 451 (BIA 1975) [PDF version], a 14-year-old child lost his LPR status – when his parents abandoned their US residence and the child left in the custody of the parents.
In other cases, the abandonment cases confirm that the status of an LPR child is dependent on the status of the LPR parent.
In a Ninth Circuit Court case, In Khoshfham v. Holder, 655 F.3d 1147 (9th Cir. 2011) [PDF version], the Court did find a distinction. The court ruled that the abandonment carry-over to the child only applies if the abandonment occurs before the child turns 18. If a child is 18 or older when his/her parent abandons their LPR status, that abandonment will not apply to the child. A separate determination must be made regarding the intent of the child separate from the intent of the parent.
Returning to the US on a Visitor’s Visa.
According to the Department of State, pursuant to 9 FAM 502.7-2(b)(6), just because a person returns to the US on a visitor’s visa and not a returning resident visa – doesn’t mean the LPR has abandoned their LPR status.
For help obtaining a returning resident visa call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us.
