When a person is admitted to the United States as a lawful permanent resident (“LPR” status), he or she does not receive an absolute grant of residence for the rest of his or her life. Rather, the grant is conditional and depends upon certain conditions remaining unchanged. For example, if an LPR commits a very serious crime, the LPR can be removed from the United States. The more common reason for loss of LPR status, however, is abandonment of LPR status.

When a person is given LPR status, they are expected to make their actual home in the United States. If they leave the U.S. for anything other than a temporary purpose, they will lose their LPR status automatically. This means that when they attempt to return to the U.S. after having automatically abandoned their LPR status, they can be detained at the port of entry and held pending a determination of abandonment by an immigration judge. In many cases, such returnees are not told of their right to a hearing before an immigration judge and are simply put on the next flight out of the U.S. For this reason, it is important to understand what constitutes a “temporary” absence and what constitutes abandonment of LPR status.

The leading administrative case on this subject is Matter of Kane (15 I&N 258, BIA 1975). That case involved an LPR who lived 11 months out of each year in Jamaica, where she ran a boarding house, and then returned to the U.S. for one month, where she rented a room by the week. The Board of Immigration Appeals held that the LPR had abandoned her residence in the U.S. and was no longer entitled to enter as an immigrant.
In Matter of Kane, the Board reiterated that the law requires a returning resident to establish that he or she is returning to the United States from a temporary absence abroad. The Board first examined the use of the word “permanent” in the definition of lawful permanent resident:
“a relationship of continuing or lasting nature, as distinguished from temporary . . .”
The Board next cited Section 101(a)(33) of the Immigration and Nationality Act for the definition of “residence”:
“the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”
They finally observed that the law requires that someone claiming returning resident status must be returning:
“to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad.”
In their decision, the Board summarized court decisions covering three important areas of consideration that must go into making a determination as to whether the alien’s trip abroad was “temporary”. These include:
  1. Purpose in leaving. “The traveler should normally have a definite reason for proceeding abroad temporarily.” Examples cited include “education and professional training;” “employment for a definite ‘albeit extended period’, by accepting a two year university teaching position abroad;” “employment abroad with one’s U.S. employer;” and, “liquidation of assets.”
  2. Termination date. “The visit abroad should be expected to terminate ‘within a period relatively short, fixed by some early event.” This means that the traveler should either have a fixed return date when departing, or the return will be triggered by a specific event. If the return is delayed by unexpected circumstances, such as war or illness, then the traveler is expected to return as early as possible when circumstances change.
  3. Place of employment or actual home. The traveler must intend to return to the United States as a place of employment or business and home. The traveler must possess this intent when leaving the U.S. and at all times while abroad.

The nature and extent of the LPR’s ties to the U.S. are also important considerations, though not determinative in the absence of a clear expression of each of the three factors listed above.

In the Kane case, the Board found that Mrs. Kane had abandoned her LPR status in the United States. She lived in Jamaica and traveled to the U.S. for one month each year, ostensibly for the purpose of “maintaining” her lawful resident status in the United States. Since her actual place of residence was in Jamaica, she was no longer entitled to LPR status in the U.S.

One of the more prevalent myths in the immigrant community is that an LPR need only make one trip a year to the U.S. to “maintain” their LPR status. This is patently untrue. While the INS is reasonably lenient in making determinations of abandonment, a person who lives and works abroad will eventually be determined to have abandoned their lawful permanent resident status. That could come as early as their first trip back, or as late as two or three years into their overseas stay, but it will happen.

James R. Gotcher – Partner