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Friday, January 26, 2018

Decision to be or not to be a U.S. citizen or permanent resident can’t be made lightly

The decision to become or remain a U.S. citizen or lawful permanent resident (green card holder) is a strategic one that can be quite complex, depending on the client’s circumstances. There are both benefits and consequences to obtaining or relinquishing long-term status in the United States.

Lawful permanent residence comes with the privilege of residing in the U.S., but also the responsibility of residing in the U.S. While some green card holders make their way to U.S. citizenship, others maintain lawful permanent resident status without change, while still others abandon the status altogether.

Abandonment of lawful permanent residence usually occurs when the green card holder decides to move out of the United States. The requirement that a lawful permanent resident maintain a primary place of residence in the U.S. is taken seriously by the government, and is a question of fact by U.S. Customs and Border Protection (CBP) officers. All factors can be weighed in determining whether this expectation is being met, including time out of the U.S., location of family, location of employment, and even the minutiae of where one keeps a library card or a grocery store card.

If a determination is made by a CBP officer that a green card holder is not maintaining a primary place of primary residence in the U.S., but the individual will not voluntarily give up lawful permanent resident status, an immigration judge may be asked to weigh the evidence and decide if the status has, in fact, been abandoned. This requires the judge to determine the intent of the individual upon leaving the U.S., and actions, activities and factors that occur subsequent to departure.

Generally, CBP officers provide a one-year grace period after departure in which the individual can settle any affairs and make a firm decision. After that one year, the person may be faced with a decision to either formally abandon the status, or maintain it by either moving to the U.S. again or obtaining a re-entry permit. It is important that a green card holder who plans to abandon status understand that he or she is giving up the ability to sponsor family members for lawful permanent residence into the future.

While becoming a U.S. citizen (where possible) removes the returning residency risks inherent in living outside the country, it is not the only option available to lawful permanent residents planning to move abroad, such as those who have an international work assignment or need to relocate temporarily for family reasons. One can also file an application to obtain a re-entry permit before leaving the U.S. These documents permit foreign-resident green card holders to maintain lawful permanent residence and are granted for a period of up to two years at a time.

There is no statutory or regulatory limit on the number of re-entry permits an individual can obtain, or the number of years these documents can assist with maintenance of U.S. status. While initial permits are generally granted in two-year increments, be aware that the longer a lawful permanent resident resides outside the United States, the more likely it is that the re-entry permit will only be granted for a single year at a time. This may be how the U.S. government encourages green card holders to make up their mind.

Counsel need to be aware of the risks and rewards when advising clients on whether to obtain maintain or give up their status as either a citizen or lawful permanent resident.

Eileen Martin is the immigration practice team leader at Lippes Mathias Wexler Friedman LLP. She has more than 20 years of experience in immigration law assisting clients from around the world with various matters, including work permits, employment-based immigration, port-of-entry issues, visa issuance, family-based immigration, immigrant and non-immigrant waivers and assessment of U.S. citizenship. Elizabeth Klarin, counsel with the firm, has more than 15 years of immigration experience assisting clients with the full spectrum of U.S. immigration matters. She represents clients from around the globe across virtually every industry, as well as individuals seeking strategic immigration options and solutions. Both work out of the firm’s offices in Buffalo, N.Y., and Burlington, Ont.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.




Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.