Abandonment of Lawful Permanent Residence – Part One
According to the US Customs and Immigration Services (USCIS), applicants are not eligible for naturalization if they have abandoned their Legal Permanent Resident Status (LPR). Abandonment is a legal term that generally is determined at the discretion of the USCIS. Abandonment means that an LPR demonstrates the intent to no longer reside in America as an LPR – after the person has departed the United States. The USCIS also provides that if a parent abandons his/her LPR status, that abandonment is imputed to a minor child in the parent’s control and custody.
An LPR is permitted to leave the US but they need to be careful. If they stay abroad for too long and depending on the circumstances, the left may result in an abandonment of LPR status. The abandonment provision applies even if the LPR leaves the US and then is improperly permitted to return. The reason abandonment affects the naturalization process is because naturalization requires continuous residence in the US. Abandonment means the LPR didn’t continually reside in America.
Once it’s determined an LPR fails to meet its LPR status, the US Department of Homeland Security (DHS) will issue a Notice to Appear (Form I-862) at a removal proceeding. At the removal hearing, the LPR will normally deny the naturalization application due to the abandonment. The final determination about whether an LPR has abandoned his/her LPR status is made by an immigration judge. The applicant only loses his/her LPR status if and when the immigration judge issues a removal order – and that order becomes final.
What abandonment factor does the USCIS consider?
LPR applicants must establish that they did not abandon their LPR status once the USCIS makes an abandonment determination. Some of the factors the USCIS will review include:
How long the LPR was absent from the US
A short-term stay or even an extended stay abroad doesn’t automatically mean an LPR has abandoned his/her status. LPRs should understand though that the longer they stay abroad, the more likely the USCIS will consider that their travel outside the US constitutes abandonment.
It helps the LPR’s position if an extended stay is for reasons beyond the control of the LPR such as a long-term illness. Returning to the US for a short visit likely will still be considered abandonment if a large part of the LPR’s time is spent outside the US.
The reason the LPR left the US
The purpose for the time outside of the US is a factor the USCIS will consider. It helps the LPR’s position if he/she “has a definite reason for proceeding abroad temporarily.” A common example of a good reason to be abroad is to visit with a parent who lives outside the US – when that parent is in ill health.
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