Abandonment of Lawful Permanent Residence – Part Two

Whether the LPR does intend to reside permanently in the US, even though he/she spends time outside the country, is an important abandonment factor.

Intent to live in the US includes the intent to work in the US (through employment or a business) or to have an actual home in the US. The intent factor applies not just when the LPR wants to return – but the entire time the LPR is in a foreign country.

A timely LPR visit (generally less than one year from the departure) or the possession of a reentry permit is not evidence of intent to reside in the US permanently. In the same way, failure to obtain a reentry permit doesn’t mean the LPR didn’t want to stay in the US permanently.

The continual US ties factor

Multiples ties to the United States, while abroad, help to confirm that the LPR did not abandon his/her LPR status. Examples of these ties, according to the State Department, include:

  • Filing the US and state income tax returns – as a US resident
  • Keeping a home/property in the US while abroad
  • Keeping business affiliations in the US while abroad
  • Possession of driver’s license with a US address
  • “Immediate family members residing in the United States who are U.S. citizens, LPRs, or are seeking citizenship or LPR status.”

The USCIS will also consider the LPR’s connections with people outside the US including:

  • “Immediate family members residing outside of the United States
  • Property and business ties in a foreign country
  • Employment by a foreign employer or foreign government
  • Voting in foreign elections
  • Running for political office in a foreign country
  • Frequent and extended trips outside of the United States.”

The USCIS considers it a rebuttable presumption that a person has abandoned his/her LPR status if that person:

  • “Voluntarily claims alien status to qualify for special exemptions from income tax liability”
  • Doesn’t file federal or state income tax returns – on the basis the persons consider themselves to be nonresident aliens.

The presumption can be rebutted with sufficient evidence.

Additional evidence to help show a person intended to keep their permanent US residence includes:

  • Keeping up the family ties – such as children or other relatives who reside lawfully in the US – attending school
  • Owning or renting real or personal property in the US

“Current or recent employment or education in the United States”

When considering the abandonment issues in a naturalization application, USCIS will consider the available documentation. They may also issue a Request for Evidence for more information.

Preserving your US residence

Applicants may want to protect their naturalization application if they leave the US for a year or more by preserving their US residence – through a formal application process.

There may be occasions when an LPR does want to record the abandonment of their LPR status. This process can be achieved through the filing of a Record of Abandonment of Lawful Permanent Resident Status (Form I-407). There is no requirement for an LPR to file this form.

What factors should you consider before you leave the US?

If you anticipate leaving the US for a substantial period of time, you should review your right to obtain a re-entry permit. That permit should give you two years to reenter instead of just one. You should also review your obligations with an experienced immigration lawyer – especially since you may need to take important supporting documentation with you.

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.

Form I-130 Petition for Alien Relatives: The Winning Guide

The first steps on the pathway to obtaining a family-based permanent residence or green card in the United States is Form I-130, Petition for Alien Relative. The Form I-130 is used by a U.S. citizen or lawful permanent resident to establish a qualifying relationship with the beneficiary.

Although the steps that are necessary to be undertaken are fairly consistent, the processing time of I-130 depends on other circumstances. The processing time will mostly vary significantly based on the type of relationship (between petitioner and beneficiary), USCIS caseload, and your ability to file an accurately prepared I-130 petition properly. The following outline describes the necessary steps of the I-130 timeline for most people.

The marriage visa process is more straightforward and less costly, comparing to the fiance K-1 visa. The State Department will assess the marriage-based immigrant case, and after it approves it, it will issue a visa. Visa issued this way will also serve as a temporary green card.

With this visa, you will be able to travel to the United States, and after you get granted the green card, the State Department will mail it to you. If you have been married for less than two years after entry to the United States, you will first be issued a conditional green card. Before receiving a ten-year green card, you will have to file to remove conditions.

When it comes to processing times for Form I-130 Petition for Alien Relative, it also can be slow. As of mid-2020, it took from seven to 22 months on average for USCIS to process this form. Upon approval of the I-130 petition, how long it takes before you can come to the United States will depend on whether you are married to a U.S. citizen or a lawful permanent resident (“LPR”) or green cardholder.

If you are married to a U.S. citizen, you will qualify as an immediate relative. This means that your case would take the length of time it takes the government to process it. Usually, the time you have to wait for in this case takes about two months before transferring the case to the National Visa Center (NVC).

You will then have to wait for several more months before the U.S. embassy is ready to schedule your interview. As you can see, the total average processing time can be up to 24 months.

On the other side, if you are married to a lawful permanent resident, then your priority date is not immediate. Instead, you will be subject to the quota system.

If your lawful permanent resident spouse has lived with you in a foreign country for more than six months, you should consider consulting an attorney to ensure that the government has not deemed his or her green card “abandoned.”

Although a marriage CR-1 visa will not take less than 12 months, it has specific advantages. One of these is that immigrants arrive in the United States with permanent residency once they cross the border.

Upon arrival, they can immediately work, get social security number, driver’s license, and travel outside the United States. The green card should arrive in the mail within a couple of weeks of arrival in the United States, but the stamp in the passport at the border is evidence of green card status (I_551 stamp).

To follow up with the current processing time, you can visit the USCIS official website and see trends in all five field offices or service centers: Nebraska, California, Potomac, Texas, and Vermont.

Panama Citizen Vacates Plea through Effective Counsel

Client: Lawful Permanent Resident
Client’s Country of Origin: Panama
Case Type: Criminal and Removal
Date of Application: August 2010
Date of Approval: February 2019

Our client retained Attorney Frank Krajenke of Herman Legal Group after sitting with a criminal conviction for three years. Our client left Panama and came to the US as a child with lawful permanent resident status. In 2010, he pled guilty to low-level charges arising from a domestic violence issue and was sentenced to complete probation. Nearly three years later, our client fulfilled the court orders but did not anticipate the removal consequences that followed.

Our client consulted with Attorney Krajenke, informing him that he was not advised of immigration consequences that would result from the plea. In addition, our client stated that no interpreter was present at the hearing, he was never told by former counsel that he would be deported and stated he would not have pled otherwise.

In 2013, Herman Legal Group counsel filed a motion to vacate the plea on constitutional grounds of failure of former counsel to advise of immigration consequences. Years had passed, and the opposing counsel sought to dismiss based on the passage of time.

In February 2019, Attorney Krajenke appeared in court and found out that the motion had been denied; however, after spending time speaking to the judge, the judge became receptive to our client’s argument and reversed her initial decision to deny the motion, permitting our counsel to withdraw plea. Furthermore, our client pled to an amended low-level charge without grounds for removal.

While this case required time and patience, the outcome is substantially successful for our client. Not only is it critical to retain an immigration lawyer, but it is also key for lawyers to analyze the courtroom and judge in order to grasp what may be most favorable for their client.

Local Ohio Resident Receives Lawful Permanent Residence After Long Wait

Client: Student
Client’s Country of Origin: Venezuela

Chief Paralegal Connie Cook of Herman Legal Group assisted our client with obtaining lawful status. Our client is a citizen of Venezuela and originally came to the US to visit family. Later, our client began her schooling and adjusted to student status. From then, she remained in the US for more than ten consecutive years, and finally, in 2016, her US citizen relative filed an I-130 petition on her behalf in order to commence the adjustment of status process for lawful permanent residence.

Due to our client being over 21 years of age, she was anticipated to bear a long waiting period prior to being issued a visa. The USCIS sets a quota each year for family-based visas—once the quota is met, the USCIS stops issuing visas until the next fiscal year, which creates a backlog of visa applicants. It is not uncommon for applicants over 21 to anticipate waiting years before approval to submit just the green card application. Depending on various factors, the average wait time for immigrants of this category can last from ten to 24 years.

However, with the assistance of Herman Legal Group counsel, our client’s case was successful in the sense that the longer duration of a waiting period was eliminated, and our client was able to file for her visa afterward. Expand??

Cancellation of Removal

Cancellation of removal is a one-time only form of relief granted under court discretion.  There are several factors the court will take into consideration when granting this relief.  The requirements an immigrant must show differ for lawful permanent residents (LPRs), such as green card holders, and non-LPRs.

Permanent Resident Card

Permanent Resident Card

Immigrants of LPR Status Must Show

  • Green Card was obtained lawfully;
  • Continuous residence in the US for 7 years after admission AND continuous status of LPR for 5 years before the “stop-time” rule is initiated (see below);
  • No conviction of an aggravated felony;
  • No offense triggering criminal inadmissibility/crime of moral turpitude; and
  • Have not received relief in the past.

Removal and Deportation

Removal and Deportation

Immigrants of Non-LPR Status Must Show

  • Continuous and physical presence in the US for 10+ years (date of admission to date served Notice to Appear or commission of crime);
  • Good moral character (No convictions of criminal inadmissibility or deportability grounds); and
  • Exceptional and extremely unusual hardship to LPR or US Citizen relative (see below);

Absences from the U.S. for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days lead to a finding of failure to  maintain continuous physical presence.

Stop-Time Rule

Stop-Time Rule

“Stop-time” Rule

The Immigration and Nationality Act §240 provides that an immigrant’s continuous residence or continuous physical presence ends when:

(1) the immigrant has committed an offense referred to in section 212 that renders him inadmissible to the US under section 212 or or removable from the US under section 237 or 237 of the Act; or

(2) in the case of applying for cancellation of removal, when the immigrant is served with a Notice to Appear. Whichever is earliest.

In June 2018, the US Supreme Court issued a decision in Pereira v. Sessions which held that the plain language of the statute requires the Notice to Appear to specify the date, time, and location that the hearing will take place. This is in light of many immigrants being served notices which stated the date of their hearing is “to be determined,” resulting in their lack of awareness of suspended continuous presence. Furthermore, if you have been served a Notice to Appear for removal proceedings, check to see if your hearing has been assigned a specified time and place. Otherwise, failure to specify on the matter does not trigger the stop-time rule.

Deportation

Deportation

Exceptional & Extremely Unusual Hardship

Cases in which a noncitizen must display exceptional and extremely unusual hardship are tough cases to win as they are analyzed under a very restrictive standard.  The hardship must not be to you, but to an immediate family member who is a US citizen or US permanent resident. Note, mere economic hardship will not qualify under the standard.  The court will analyze several factors such as:

  • Age
  • Children’s ages
  • Health
  • Ability to support your family from your home country
  • Availability of education and medication in your home country

Relief for extremely unusual hardship is not often granted.  Consult with an immigration lawyer to analyze whether your case may be successful and granted relief under the circumstances.