By: Joseph Barnett, Robert Blanco, and Afshan Randera
With current Form I-829 average processing times extending beyond 3 years, it’s critical for EB-5 conditional green card holders to maintain lawful immigration status. U.S. laws provide immigration officers the right to scrutinize a green card holder’s entry upon their return from overseas to determine one’s immigration status. Those absent from the United States for extended periods of time risk the unintentional abandonment of green card status, if a U.S. Customs and Border Patrol (“CBP”) officer determines the foreign national no longer has intent to maintain the U.S. as the principal place of residence. Here are 5 things to know about involuntary abandonment of green card (conditional or permanent) status:
1. No Specific Time Required. We are often asked how long one must remain in the United States after obtaining a conditional green card, but there is no magic number or specific timeframe for defining or calculating abandonment of status – each situation requires an inquiry into the individual’s intentions and actions. Sometimes green card holders believe that they can make short visits every six months or a year, but regular visits to the U.S. by a green card holder whose real residence is in another country may not protect that person. That said, a green card holder can stay outside the country for more than 6 months/ one year and still maintain permanent resident status. Wolfsdorf Rosenthal LLP suggests green card holders obtain a reentry permit prior to long periods of absence.
2. Intent Matters, But Facts Do Too. If a green card holder does not have the intent to permanently reside in the United States, he/she can technically lose their status, even if they visit the U.S. often. A green card holder may have multiple residences, but the U.S. residence must be the permanent one. It is important to demonstrate that the departure from the United States was made with the intent of returning to an “unrelinquished residence,” (or that the stay abroad was for reasons beyond the foreign national’s control). Green card holders can establish residency and show ties by keeping in regular contact with family in the U.S., even while on trips abroad; maintaining work/ work offers in the U.S.; filing taxes as a U.S. resident; maintaining financial accounts in the U.S.; renting or owning a residence; or other community ties. Retaining supporting documentary evidence is important to demonstrate such ties.
3. Derivative EB-5 Beneficiaries. Until the permanent green card is obtained, EB-5 investors must be aware that their immigration status directly affects their dependent family members. If the primary investor is found to have abandoned his/her status, then the dependent family members will be unable to file the Form I-829 without the investor. Additionally, unless concluded otherwise, an alien child under the age of 16 years is not considered to possess a will or intent separate from that of the parents with regard to a protracted stay abroad.
4. Form I-407. When returning to the United States from a long trip abroad, CBP may question the reason for the length of the trip and purpose of being abroad. If CBP deems an absence is too long or irregular , the CBP officer may judge that the green card holder has abandoned status. In some cases, they will try to make a permanent resident sign a Form I-407 “Record of Abandonment” statement declaring that he/she is voluntarily abandoning the green card. A Form I-407 must be signed voluntarily, and there are no negative consequences for refusal to sign the form. However; in such instance, CBP must issue a Notice to Appear (NTA) before an immigration judge who will decide if permanent residence has been abandoned.
5. Application for Naturalization. Rules for maintaining green card status are separate and apart from those related to naturalization, which requires continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400. However, one circumstance where the U.S. government will question whether an abandonment of status has occurred is during an application for naturalization, in which a green card holder must declare and explicitly show the dates in and out of the country. If out of the country most of the time or there is irregularity, this would stand out, and the government may deny the naturalization application and even determine that you have abandoned status.
Wolfsdorf Rosenthal LLP has the expertise and experience to help an individual deemed to have involuntary abandoned his/her green card status. Contact a Wolfsdorf Rosenthal LLP attorney with any questions about abandonment of status.
