Abandonment or Relinquishment of Green Card Status

For a variety of reasons, there are situations in which individuals who hold lawful permanent resident (LPR) status may wish to relinquish their green cards. Personal circumstances change over time and new opportunities present themselves, making it necessary or desirable to relocate outside of the United States on a permanent or indefinite basis. This is not a decision to be taken lightly, and the various ways that abandonment may impact foreign nationals in the long term must be given serious consideration.

Extended Travel Abroad May Result in Abandonment of LPR Status

As the name implies, a lawful permanent resident must permanently reside in the U.S. Any extended stay abroad may result in LPR status being deemed as abandoned. Determining whether a green card has been abandoned is often a fact-based judgment after scrutiny at an airport or other port of entry. More information on this topic is available in Part 1 and Part 2 of the MurthyDotCom NewsBrief, Extended Travel by a Permanent Resident. Generally, trips exceeding 180 days, but fewer than 365 days, outside the U.S. create a rebuttable presumption that LPR status has been abandoned. Travel over 365 days at a time creates a presumption of abandonment of LPR status.

Voluntary Relinquishment of LPR Status

There is a process for affirmatively relinquishing permanent resident status. That is, when an individual makes the choice to relinquish LPR status in a formal, official manner. Voluntary relinquishment of LPR status typically is done by completing an official record of abandonment (form I-407). In completing the I-407, the individual voluntarily, willingly, and affirmatively demonstrates intent to relinquish or abandon LPR status.

Process to Submit Form I-407

An I-407 can be submitted in person or by mail to a U.S. Citizenship and Immigration Services (USCIS) international field office.  The I-407 also may be submitted to certain U.S. consulates and embassies. The physical green card generally is submitted along with the I-407.

Another option is to hand the form to a Customs and Border Patrol (CBP) officer at a U.S. port of entry (POE). This typically occurs when a green card holder requests admission at a POE, but the CBP officer determines that the LPR status has been abandoned, usually due to prolonged absence. In this situation, one may have the option to fight the abandonment finding before an immigration judge. If the individual does not wish to challenge this determination, it may be possible to request admission as a nonimmigrant, but such a request ordinarily is granted only if the foreign national agrees to first complete an I-407.

Immigration Consequences of Losing LPR Status

Once LPR status has been lost – either affirmatively or by abandonment – one is subject to the same immigration rules as any other foreign national. It becomes necessary to qualify for nonimmigrant status to gain readmission to the United States. This typically means having to obtain a nonimmigrant visa (e.g., B-1/B-2) or, if eligible, applying for visa waiver through the Electronic System for Travel Authorization (ESTA) program. Likewise, to be able to work in the U.S., the individual generally needs to be in a work-authorized status (e.g., H1B) or, otherwise, to qualify for an employment authorization document (EAD).

Voluntarily abandoning LPR status by submitting an I-407 can be helpful to those who cannot or do not wish to keep that status but may need to visit the United States in the future. Being proactive in the relinquishment can be beneficial when later trying to establish a lack of immigrant intent, which is required for admission to the U.S. in most nonimmigrant classifications. In these situations, it is recommended that one carry a copy of the finalized I-407 when requesting admission to the U.S. as a nonimmigrant.

Revocation is Irreversible, but New Green Card May be Possible

Once LPR status has been abandoned, voluntarily or otherwise, this cannot be undone. However, this does not prevent the individual from reapplying for a green card, as any other foreign national would (e.g., sponsored by a U.S. citizen or LPR qualifying relative or an employer). Immigration law does not punish a foreign national for having given up LPR status in the past.

Note that there have been a few cases in which individuals have submitted form I-407 but were later deemed by a court not to have abandoned LPR status. These rare situations are beyond the scope of this article, however.

Tax Consequences for Former LPRs

There can be tax consequences related to losing LPR status. For instance, some individuals are subject to an expatriation tax if LPR status is abandoned. Individuals considering the abandonment of LPR status first should obtain qualified tax advice. Like immigration laws, tax laws are subject to change and consequences of decisions often depend upon timing.

Conclusion

Acquiring LPR status can be a long, challenging process. Accordingly, careful consideration is prudent before following through on abandonment of this status.

Originally published 25.Apr.2016, this MurthyDotCom NewsBrief has been updated for our readers.