As the name suggests, permanent resident status is generally constant. It’s granted to people who intend to live in the United States for the foreseeable future. Permanent residents, also known as green card holders, have the privilege of living and working in the United States permanently. However, there are ways to lose permanent resident status. Certain actions can trigger removal (deportation) proceedings and the potential loss of this coveted immigration status.
The article discusses the major ways that one can lose permanent resident status, but it isn’t an exhaustive list. Only a lawful permanent resident who naturalizes as a U.S. citizen is safe from most of these grounds of removal.
1. Living Outside the United States
Generally, spending more than 12 months outside the United States will result in a loss of permanent resident status. In fact, shorter absences can trigger abandonment if upon reentry the Customs and Border Protection (CBP) officer determines that you intended to live outside the United States. For example, failing to file income taxes with the IRS while living outside the U.S. can trigger removal.
Each year many people unintentionally abandon their green card status when they move back to their home country. They may need to take care of a sick family member, attend school or even tend to their own medical needs. Without the right preparation and planning, it leads to the most common way to lose permanent resident status.
There are exceptions. Permanent residents who obtain a reentry permit prior to departure can generally extend there absence up to 24 months. Additionally, U.S. government personnel (military and direct-hire civil service employees), their spouses and minor children who hold permanent resident status may remain outside of the United States for the duration of an official overseas assignment plus four months without losing their resident status.
RECOMMENDED: Reentry Permit for Permanent Residents
Reacquiring a Visa
A former immigrant who has lost permanent resident status and wants to return to the United States as an immigrant must obtain a new immigrant visa. In most cases, this means that the intending immigrant must re-apply. A U.S. relative (spouse, parent, offspring or sibling) may file an I-130 immigrant petition and the intending immigrant can apply through consular processing once the visa petition is approved and a visa is immediately available.
In some cases, the former permanent resident may apply for a returning resident visa. An application for returning resident status requires evidence of the applicant’s continuing, unbroken ties to the United States, that the stay outside the United States was truly beyond the applicant’s control and that the intent of the applicant was to always return to the United States. Evidence may consist of continuous compliance with U.S. tax law, ownership of property and assets in the United States and maintenance of U.S. licenses and memberships. Having U.S. relatives, attending school overseas or stating an intent to return is generally insufficient. It’s best to seek the assistance of an immigration attorney when requesting a returning resident visa.
2. Voluntary Surrender of Green Card
If you have ever filed Form I-407, you have voluntarily abandoned your status as a lawful permanent resident of the United States. Each year several thousand people file Form I-407, Record of Abandonment of Lawful Permanent Resident Status.
The most common reason people file Form I-407 is to escape the obligation of paying U.S. taxes. However, anybody that wishes to do this should consult with an immigration attorney and tax professional that can advise them on the long-term consequences of their actions. There are other former U.S. immigrants that simply decide they want to leave the United States permanently.
In some cases, CBP officers may ask certain individuals to sign Form I-407. If you’ve been living outside the United States (as discussed in the previous section) and the CBP officer believes you have abandoned your U.S. residence, you generally have the right to defend yourself in removal proceedings. The officer may ask you to sign Form I-407 so that you give up this opportunity to defend yourself and voluntarily deport yourself. If your intention is to continue your permanent residence, do not sign I-407 and contact an immigration attorney.
3. Fraud and Willful Misrepresentation
A fraud is generally committed when an individual lies to obtain immigration benefits of some kind. However, any assertation or representation of facts that is not completely truthful can create significant immigration problems and potentially result in the loss of permanent resident status.
Fraud can occur when preparing an application, submitting evidence, interviews and any exchange of information with immigration officials. In can occur in connection with immigration benefits other than permanent residence. For example, extensions of nonimmigrant stay, change of status, employment authorization and parole are all immigration benefits that USCIS evaluates for potential fraud.
Two of the more common ways to lose permanent resident status include marriage fraud and visa fraud.
Marriage has been a long-time target of fraud. Since marriage to a U.S. citizen is one of the fastest paths to a green card, it’s often used as a vehicle to fraudulently obtain permanent residence. Marriage fraud comes in many different forms. USCIS has identified the following types of marriage fraud:
- A U.S. citizen is paid to marry a foreign national
- A U.S. citizen marries a foreign national as a favor
- A foreign national defrauds a U.S. citizen who believes that their marriage is legitimate
- Mail-order marriages (where either the U.S. citizen or the foreign national knows that the marriage is fraudulent)
- Visa lottery fraudulent marriages
Nonimmigrant Visa Fraud
Most foreign nationals applying for a U.S. nonimmigrant visa are required to demonstrate that they plan to return home when they are done with their intended program or activity. This standard, known as nonimmigrant intent, requires the individual to have a residence abroad that he or she has no intention of abandoning.
The U.S. Department of State uses a 90-day rule to evaluate cases in which the nonimmigrant attempts to change status or adjust status to permanent resident. The 90-day rule is a guideline of sorts that there’s a presumption of fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry. For example, entering the United States on a B2 visa for the purposes of getting married and filing Form I-485 to adjust status would be a violation of the visa terms.
RECOMMENDED: 90-Day Rule and Adjusting Status
4. Criminal Convictions
Not all criminal convictions will cause an individual to lose permanent resident status. There are certain types of criminal offenses (typically violent crimes) that are more likely to put a permanent resident in removal proceedings.
It’s impossible to list a precise list of crimes that will result in deportation. Only an experienced immigration attorney can analyze a specific situation and provide an opinion. Very generally, a person may be removed from the United States if he or she:
- Is convicted of a crime involving moral turpitude that was committed within five years after the date of U.S. admission (or ten years if the person received a green card as a criminal informant) and is punishable by a sentence of at least one year.
- Has been convicted of two or more crimes involving moral turpitude at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct.
- Has been convicted of an aggravated felony at any time after U.S. admission.
If immigration officials believe that a permanent resident is deportable, the individual will generally will not be removed immediately. In most cases, the green card holder will have a right to defend himself in immigration court. However, an individual with an outstanding order of removal could be deported more swiftly.
5. Failing to Remove Conditions on Residence
Conditional residents who fail to remove the conditions on residence are generally removable upon the expiration of their two-year green cards.
Certain foreign national investors or spouses who obtained residence through marriage may have received a two-year conditional green card. In order to remain a permanent resident, the conditional permanent resident must file a petition to remove the condition during the 90 days before the card expires. The conditional card cannot be renewed.
- To remove the conditions on a green card based on marriage, you must file Form I-751, Petition to Remove the Conditions of Residence.
- To remove conditions on a green card for entrepreneurs, you must file Form I-829, Petition by Entrepreneur to Remove Conditions.
Generally, the foreign national may be put into removal proceedings if the petition is not filed by the expiration date. If the issue is left unaddressed, the foreign national will lose permanent resident status.
Citizenship is the Right Way to Lose Permanent Resident Status
Permanent residents who choose to naturalize as U.S. citizens will also lose permanent resident status in the process. U.S. citizens are protected from grounds of deportability. In other words, criminal convictions that would result in deportation for a permanent resident do not apply to a U.S. citizen. Generally, the only way immigration officials can remove a U.S. citizen is if he or she used fraud to obtain a green card or citizenship.
Many permanent residents who have resided in the United States for at least five years are now eligible to file Form N-400, Application for Naturalization.
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