SRW Successful in Helping LPR Retain Status after Prolonged Absence from U.S.

May 15th, 2017 by SRW Lawyers


Our client, an Indian citizen and lawful permanent resident of the U.S., recently came to us with the following facts:

She had abruptly left the U.S. about 4.5 years ago and had not entered the U.S. since that time.  She had a lawful permanent resident husband who was in possession of a valid re-entry permit.  She had a minor U.S. citizen son and a minor Indian citizen daughter. The family was now ready to return to the U.S., but were concerned about whether the mother would be allowed to return to the U.S. as a lawful permanent resident as a result of her prolonged absence.  In addition, the minor daughter had never been issued an immigrant visa.

The client explained that she had quickly left the U.S. to say her final goodbyes to a close family member in India – but had anticipated returning within a few months and had purchased round-trip tickets accordingly.  Her husband had remained in the U.S. initially, but ultimately re-joined his family in India after applying for a re-entry permit.  Over the course of 4 and a half years, due to various life events relating to finalizing the deceased family member’s, her elderly parent’s health (emotional and physical), her own pregnancy with complications, and then an infant with health issues, the client had been unable to return to the U.S. either permanently or even just to apply for her re-entry permit.

She further explained that the family had always retained their intent to return to the U.S. – it was just unforeseen circumstances that prevented them from doing so.  She explained how they had maintained U.S. bank accounts, had purposely sought out employers in India that could transfer them to U.S. offices, etc.

After reviewing her facts thoroughly, we explained that when she presented herself for application and re-admission to the U.S., she could be faced with one of the following situations:

  •  CBP could re-admit her as a returning lawful permanent resident.
  •  CBP could allege that she had abandoned her status as a result of her significant absence from the U.S.  At that time, she would be provided the following two options:
    • Agree that she had abandoned her status and endorse Form I-407 and voluntarily surrender her green card and be returned back to India; or
    • Ask for a review of the abandonment allegation in front of an Immigration Judge in removal proceedings.  If asked to be placed into removal proceedings, she would be allowed to enter the U.S. and remain in the U.S. as a LPR (with employment authorization) while her proceedings were pending.  She would ultimately be allowed an opportunity to establish why she had not abandoned her status and have an Immigration Judge make a formal finding.  If the Immigration Judge agreed with her, the removal proceedings would be terminated and she would remain an LPR.  If the Immigration Judge upheld the abandonment allegation, she could either be allowed to withdraw her application for admission or be ordered removed.

We also explained that she had the following options:

  •  Attempt to enter the U.S., understanding the possible situations she could face with CBP;
  • Voluntarily surrender her lawful permanent resident status abroad.  Her lawful permanent resident husband could sponsor her and their minor daughter for new green cards.  However, given the priority date backlog within the F2A preference category, as well as their nationality, they would likely be faced a wait of several years before being able to return to the U.S. as a family.

We further clarified that if the client was re-admitted as a permanent resident, their minor daughter should also be admitted as a permanent resident under 8 CFR §211.1(b)(1).  Under this provision, an immigrant visa requirement is waived for a child born during a temporary visit abroad of a lawful permanent resident mother, provided:

  • The application for admission is made within two (2) years of birth;
  • The child is accompanied by the parent applying for readmission as a returning lawful permanent resident;
  • This is the parent’s first return to the U.S. after the birth of the child; and
  •  The parent is admissible to the U.S. under INA §212.

Understanding the family’s multiple concerns, and knowing the minor daughter’s 2nd birthday was quickly approaching, SRW recommended the following strategy.  Specifically, we recommended that our firm prepare a detailed packet for advance submission to CBP at a local Port of Entry – explaining the facts leading to her sudden departure, her intent to return within a few months (as demonstrated by the round-trip return tickets) and the series of events which were beyond her control that necessitated her prolonged absence from the U.S., as well as explain her inability to re-enter the U.S. in the interim.   We also highlighted the applicable case law – specifically, that in determining whether she had abandoned her status, the question was her intent at the time of departure – did she intend to depart temporarily or was it intended to be an indefinite departure with no return date?  Her absence, while lengthy, was not the sole determinative factor. We submitted the packet, together with supporting documents, with a request that our client be re-admitted as a lawful permanent resident and that her daughter be admitted as a lawful permanent resident.

After a thorough review of our packet, we received feedback from CBP that our client could appear at the POE to apply for inspection and admission.  We accompanied the client to the POE where the Client was successfully readmitted as an lawful permanent resident, as was her daughter.

The family has now resumed their residency in the U.S. without having to deal with the stress and anxiety, and financial cost, of removal proceedings or a separation of several years or prolonged ability to renter the US.

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