A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, December 2, 2017

Jet Lag, Green Card, Surrender?


You are a U.S. permanent resident returning to the U.S. from an overseas trip.  You are tired. You are trying to rush home to take a nap.  Instead, you were stuck at immigration. You were asked to follow the immigration officers to a separate room.  You are questioned about your background and travel history, why you traveled, for how long, etc.  Your dreams of relaxation are shattered.  Worse, after being interrogated for what seems to be an eternity, you are asked to give up your green card by signing a document!  Stop!

Many U.S. green card holders travel internationally for business or personal reasons.  Some of them may not realize that their lengthy departures have resulted in the "abandonment" of their lawful permanent resident status.  The U.S. green card confers permanent residency to a foreign national to live and work in America.  The green card holder is expected to resident permanently in the U.S.  The law creates a legal presumption that one has given up her green card by not returning to the country for more than 6 months.  A one-year departure can be viewed as conclusive evidence of one's abandonment of her permanent resident status.  There are other circumstances that may create such a presumption.  

However, legal permanent residents should not automatically surrender their green cards when asked to do so.  An individual does not automatically lose her green card as a result of time spent abroad. Under the law, the government must prove abandonment by clear, unequivocal, and convincing evidence.  It means that although a legal resident's actions may suggest that she has given up her residency status, she still have the right to present evidence to defend herself in court. 

The Form I-407 is used when a green card holder wants to give up her permanent resident status.  When returning from overseas travel, they are sometimes asked to sign the Form I-407 at the airport.  It is important to note that this form must be signed knowingly and voluntarily.  Legal residents should not feel obligated or pressured to sign this form if they are not certain about their rights.  If a legal resident refuses to sign Form I-407, the immigration officer should issue a Notice to Appear (NTA) to request an immigration judge to hear the case.  The legal resident may then present testimony and evidence to prove that she has not given up her lawful permanent resident status.  

To prove that one has not given up her lawful permanent resident status, a person may present evidence of their ties to the U.S. (family, assets, employment, etc.), the tax returns filed, the purposes of their visit outside of the U.S., and any other reasons for their lengthy departure such as unexpected events and accidents, etc.  

If a legal resident's green card is taken away by Department of Homeland Security, she should request for alternative evidence of their legal resident status, such as an I-94 and/or passport stamp that says "Evidence of Temporary Residence."  A lawful permanent resident does not lose her status unless and until a final order of removal is entered. 

To avoid being accused of abandoning one's legal status, a legal resident should understand the law well, plan their international travel carefully, and take measures to avoid abandonment.  If lengthy foreign travel is necessary, one should consult with an experience immigration attorney in advance. 

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