UNITED STATES IMMIGRATION: The Immigration Consequences of Losing Permanent Residency


By Anthony Korda, Esq

The Korda Law Firm



Losing or Surrendering Permanent Resident Status


For many people, permanent residence is the first step to a life in the USA. There are a number of different visa options, but securing permanent resident status for oneself and immediate family members is no easy task. Many permanent residents qualify for United States Citizenship after 3 or 5 years of life in the US and make the US their permanent home.



However, not all permanent residents remain permanently in the U.S. Although a detailed analysis of the ways permanent resident status may be lost is beyond the scope of this Article, Permanent residents may lose their status in a number of ways:


1. Conditional Permanent Resident Status Not Made Permanent


INA Section 216 permits lawful permanent residence on a conditional basis, based on marriage, where the parties have not been married for at least 2 years at the time of filing the Application to Adjust Status. After 2 years as a conditional resident, the conditional resident and the Spouse must jointly file Form I-751 Petition to Remove Conditions on Residence[1]. In certain circumstances the joint filing requirement may be waived. If, for instance, USCIS is not satisfied that the marriage was genuine then conditional permanent resident status may be terminated.


Similarly, section 216A permits lawful permanent residence on a conditional basis, based on a qualifying investment, such as an EB-5 Direct Investment or an EB-5 Regional Center investment. At the end of the two-year conditional residence period the Petitioner must file Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status[2]. If certain conditions are not fulfilled (the investment is not sustained, sufficient jobs are not created, the business fails within the two-year conditional residence period, or if there is fraud, conditional permanent resident status may be terminated.


2. Rescission[3]


USCIS may place a permanent resident into rescission proceedings at any time during the first five years after becoming a lawful permanent resident if is determined they were not eligible to obtain a Green Card at the time their adjustment of status application was approved, and they would not have been eligible for a Green Card under any other provision of law. If lawful permanent residence is rescinded, they will no longer be a Green Card holder and may be placed in removal proceedings.


In order to rescind a person’s permanent resident status, USCIS must serve the person through personal service a Notice of Intent to Rescind (NOIR) within 5 years of the date of his or her adjustment. Once the NOIR has been served, rescission action may proceed even beyond the 5-year time limit. As a matter of policy, USCIS does not initiate rescission proceedings if adjustment was granted by an immigration judge.


3. Removal Proceedings


Permanent resident status may be lost if an immigration judge issues a final removal order. INA sections 212 and 237 describe the grounds on which a person may be ordered removed from the United States.

There are several grounds for removal[4], which include:

  • Inadmissibility at the time of entry or adjustment of status[5]

  • Failure to maintain status

  • Termination of conditional residence status

  • Marriage fraud

  • Criminal convictions[6], including:

  • Crimes involving moral turpitude, such as theft

  • Aggravated felonies such as murder, rape, sexual abuse of a minor, trafficking of any controlled substance, money laundering, and even misdemeanors involving a prison sentence of at least a year, regardless of whether any time at all was served

  • Drug-related crimes

  • Domestic violence

  • Theft or burglary

  • Child pornography

  • Prostitution

  • Alien smuggling

  • Obstruction of justice

  • Firearm violations

  • Conspiracy or attempt to commit any of the above

  • Falsifying immigration documents

  • Falsely claiming U.S. citizenship

  • Security and political related violations, such as engaging in terrorist activities, activities that endanger the public and national security, or activities that have potentially serious adverse foreign policy consequences for the U.S.


4. Voluntary Surrender


A permanent resident may choose to voluntarily surrender and relinquish permanent resident status. The process is relatively simple. The permanent resident completes Form I-407[7] Record of Abandonment of Permanent Resident Status, which is then mailed, together with the permanent resident card, to USCIS. In limited cases, the card may be surrendered at a U.S. Embassy abroad.


5. Abandonment


Permanent resident status may be lost by intentionally abandoning it, including, moving to another country and intending to live there permanently; declaring oneself as a “nonimmigrant” on U.S. tax returns; or remaining outside the U.S. for an extended period of time, unless it is a temporary absence.


Department of Homeland Security must report loss of status to the Internal Revenue Service

Whatever the reason for the loss of permanent resident status, Internal Revenue Code section 6039G(d)(3) requires the department of homeland Security to inform the Internal Revenue Service if that status is lost because:

  • a resident was ordered removed from the United States; or

  • chose to abandon that status and surrendered their permanent resident card.

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REFERENCES:

[1] https://www.uscis.gov/i-751 [2] https://www.uscis.gov/i-829 [3] https://www.uscis.gov/policy-manual/volume-7-part-q-chapter-3#footnote-4 [4] INA 241(b)(3)(B)(ii) [5] Common reasons for inadmissibility include a likelihood of requiring public assistance, having a serious communicable disease, or having participated in genocide. [6] 8 U.S. Code § 1227 (a)(1), §1227 (1)(B)(ii), § 1227 (3), § 1305, § 1305, 1324c [7] https://www.uscis.gov/sites/default/files/document/forms/i-407.pdf

 

ABOUT THE AUTHOR: Anthony Korda, Esq., is the owner of The Korda Law Firm with offices located in Naples, Florida; Beverly Hills, California, and a presence in London. He is admitted to the Bars of California and DC and is a Barrister of the Supreme Court of England & Wales, where he is authorized to accept Direct Access cases. LEARN MORE ABOUT ANTHONY

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