According to the American Immigration Lawyers Association, an LPR may be requested to surrender their green card when they return to the US. The LPR shouldn’t automatically comply. The LPR doesn’t lose their LPR status just because they spent time abroad. A person keeps his/her LPR status until there is a final removal order. To obtain the order, the US government must prove that the LPR abandoned his/her LPR status “by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. “Matter of Huang, 19 I&N Dec. 749 (BIA 1988).
People can’t be forced to sign the “abandonment” Form I-407. They must sign the form voluntarily. The American Immigration Lawyers Association states that refusing to sign the form doesn’t create “potential negative ramifications.” Failure to sign the form nor abandonment is “grounds for detention.” If an LPR doesn’t sign Form I-407, will receive a Notice to Appear (NTA). An immigration judge will then make the decision about the LPR’s status.
A Legal Permanent Resident (LPR) should be prepared to offer evidence showing that they didn’t abandon their LPR status – that they have ties to the United States. The LPR should also be prepared to show that the purpose of their visit abroad was due to reasons that don’t support an abandonment conclusion – such as the need to visit a sick relative or the need to work abroad for their employment. The LPR should also be prepared to explain why they couldn’t meet the expected return date or that they did meet an expected termination (of time abroad date). Matter of Kane, 15 I&N Dec. 258 (BIA 1975).
The LPR should engage legal counsel to present the arguments for why abandonment did not occur. There are many legal considerations. For example, a skilled immigration lawyer will explain that the burden of showing he/she didn’t abandon his LPR status – based on a preponderance of the evidence. Preponderance means – more likely than not – more than 51%. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994).
The determination of abandonment will be judged based on the “totality of the circumstances.” If USCIS does confiscate an LPR’s green card, the LPR “must be provided with alternative evidence of their LPR status, such as an I-94 and/or passport stamp that says, ‘Evidence of Temporary Residence.’
Additionally, just the signing of Form I-407 alone isn’t conclusive evidence the LPR intended to abandon his/her LPR status. See Matter of Wood, No. A24-653-925 (BIA Jan. 13, 1992), reported in 69 Inter. Rel. 512 (April 27, 1992). This means an LPR who signed Form I-407 can still request that an immigration law judge hear the evidence about the LPR’s abandonment status.
A skilled immigration lawyer will also explain what is a “special immigrant” under the Immigration National Act is and how that affects the abandonment issues. The immigration lawyer will also explain how the abandonment of a residence affects the overall abandonment of the LPR status issue.
AILA Doc. No. 17012960.
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