Maintaining Lawful Permanent Residence (LPR) Status

Question #1

I have just been notified that my Master Calendar Hearing, which was initially scheduled for February of 2017, has now been rescheduled for May of 2016. I have been a lawful permanent resident since 1995, but over the past few years have spent significantly more time in Canada than I have in the United States. I have been physically outside of the United States living in Canada since 2007.

At this point, and under the circumstances, I am not sure that I can ask an immigration judge to maintain my lawful permanent resident status, especially given that I do not have a clear timeframe for returning to the United States.

What is the best way to proceed with my case?

Question #2

I am citizen of Canada and Egypt, and I currently reside with my family in Montreal, Canada. My family and I received our permanent resident status in January of 2013. After entering the United States as permanent residents, we returned to Canada several days later to resume our lives. Over the next year, we returned to the United States as a family four times and remained for an average of one week per visit. In September of 2014, Customs and Border Protection (CBP) took our permanent resident cards, and we all signed Form I-407s, Abandonment of Lawful Permanent Resident Status. We did not know at the time, however, that we were giving up our permanent resident statuses when we signed the Form I-407s. We were under the impression that when we were able to take up residency in the United States, we could return to the border, collect our green cards, and re-enter the United States as permanent residents.

In March of 2015, my family and I returned to the United States/Canadian border to collect our green cards and re-enter as permanent residents. When we arrived, immigration officers did not have our cards and had no idea what we were talking about. After further investigation, we were interviewed and given the opportunity to appear before an immigration judge.

Do you believe my family and I have a chance of regaining our permanent resident statuses?

Answer:

I regularly receive questions related to the issue of properly maintaining lawful permanent resident status. Below, please find information that I believe may be helpful:

Abandonment of Residency

In general, if a lawful permanent resident remains outside of the United States for more than one year, the Department of Homeland Security (DHS) takes the position that residency has been abandoned. However, even where an absence may have been less than one year, residency may be deemed abandoned. Ultimately, the facts and circumstances of your case will dictate whether or not residency was properly maintained. 

Below is a list of factors used to determine whether or not residency was abandoned:

  1. Purpose of departure,
  2. Existence of a fixed termination date for visit abroad,
  3. Objective intention to return to the United States as place of permanent employment or actual home, e.g., family ties, job, income tax returns, club memberships, mortgages,
  4. Continuous uninterrupted intent: if the visit does not occur within a relatively short period of time, the visit will be considered temporary only if the person has a continuous uninterrupted intention to return to the United States. Criteria to determine continuous uninterrupted intention include family, property holdings, and business affiliations in the United States and Canada.

Form I-407, Record of Abandonment of Lawful Permanent Resident Status

The Form I-407, Record of Abandonment of Lawful Permanent Resident Status, is used to document when a foreign national abandons his or her lawful permanent resident status. Foreign nationals outside of the United States or at Port of Entry who want to abandon their permanent resident status may use the Form I-407. The Form I-407 also informs a foreign national of his or her right to a hearing before an immigration judge.

Withdrawal of Application for Admission

If you request a hearing before an immigration judge or are placed into removal proceedings, you may request to withdraw your application for admission. Withdrawal is permitted when: (1) you have the intent and means to depart the United States immediately, and (2) justice would best be served by permitting you to withdraw your application for admission.

Because the issues of abandonment and withdrawing your application for admission are fact specific, I encourage you to contact our office directly to discuss your case. You may contact the office to set up a consultation by calling (716) 565-6270 or emailing me directly at nmurchie@murchielaw.com.