Five Things to Know About Long I-829 Processing Times and Abandonment of Green Card Status

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With current Form I-829 average processing times extending beyond 3 years, it’s critical for EB-5 conditional green card holders to maintain lawful immigration status. U.S. laws provide immigration officers the right to scrutinize a green card holder’s entry upon their return from overseas to determine one’s immigration status. Those absent from the United States for extended periods of time risk the unintentional abandonment of green card status, if a U.S. Customs and Border Patrol (“CBP”) officer determines the foreign national no longer has intent to maintain the U.S. as the principal place of residence. Here are 5 things to know about involuntary abandonment of green card (conditional or permanent) status:

1. No Specific Time Required. We are often asked how long one must remain in the United States after obtaining a conditional green card, but there is no magic number or specific timeframe for defining or calculating abandonment of status – each situation requires an inquiry into the individual’s intentions and actions. Sometimes green card holders believe that they can make short visits every six months or a year, but regular visits to the U.S. by a green card holder whose real residence is in another country may not protect that person. That said, a green card holder can stay outside the country for more than 6 months/ one year and still maintain permanent resident status. Wolfsdorf Rosenthal LLP suggests green card holders obtain a reentry permit prior to long periods of absence.

2. Intent Matters, But Facts Do Too. If a green card holder does not have the intent to permanently reside in the United States, he/she can technically lose their status, even if they visit the U.S. often. A green card holder may have multiple residences, but the U.S. residence must be the permanent one. It is important to demonstrate that the departure from the United States was made with the intent of returning to an “unrelinquished residence,” (or that the stay abroad was for reasons beyond the foreign national’s control). Green card holders can establish residency and show ties by keeping in regular contact with family in the U.S., even while on trips abroad; maintaining work/ work offers in the U.S.; filing taxes as a U.S. resident; maintaining financial accounts in the U.S.; renting or owning a residence; or other community ties. Retaining supporting documentary evidence is important to demonstrate such ties.

3. Derivative EB-5 Beneficiaries. Until the permanent green card is obtained, EB-5 investors must be aware that their immigration status directly affects their dependent family members. If the primary investor is found to have abandoned his/her status, then the dependent family members will be unable to file the Form I-829 without the investor. Additionally, unless concluded otherwise, an alien child under the age of 16 years is not considered to possess a will or intent separate from that of the parents with regard to a protracted stay abroad.

4. Form I-407. When returning to the United States from a long trip abroad, CBP may question the reason for the length of the trip and purpose of being abroad. If CBP deems an absence is too long or irregular , the CBP officer may judge that the green card holder has abandoned status. In some cases, they will try to make a permanent resident sign a Form I-407 “Record of Abandonment” statement declaring that he/she is voluntarily abandoning the green card. A Form I-407 must be signed voluntarily, and there are no negative consequences for refusal to sign the form. However; in such instance, CBP must issue a Notice to Appear (NTA) before an immigration judge who will decide if permanent residence has been abandoned.

5. Application for Naturalization. Rules for maintaining green card status are separate and apart from those related to naturalization, which requires continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400. However, one circumstance where the U.S. government will question whether an abandonment of status has occurred is during an application for naturalization, in which a green card holder must declare and explicitly show the dates in and out of the country. If out of the country most of the time or there is irregularity, this would stand out, and the government may deny the naturalization application and even determine that you have abandoned status.

Wolfsdorf Rosenthal LLP has the expertise and experience to help an individual deemed to have involuntary abandoned his/her green card status. Contact a Wolfsdorf Rosenthal LLP attorney with any questions about abandonment of status by phone at 1-800-VISA-LAW or email visalaw@wolfsdorf.com.

This post originally appeared on Wolfsdorf Rosenthal LLP


About The Author

Joseph Barnett is a partner at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law. Mr. Barnett represents immigrant investors seeking permanent residency in the United States through USCIS-designated Regional Centers and investment in their own businesses. Mr. Barnett also assists developers with the establishment of complex corporate and financing structures for EB-5 capital. He works with economists, securities lawyers, business plan writers, and other professionals to prepare Regional Center applications, amendments, and project “exemplar” approvals.

Robert Blanco specializes in business and employment immigration cases. He prepares both immigrant and non-immigrant petitions for skilled workers, executive managers, high net worth investors, and people of extraordinary ability in the arts, sciences, and business. As a member of the firm’s EB-5 team, Mr. Blanco prepares cases for individual investors and advises U.S. businesses on how to structure investment projects under the regulations of the EB-5 program. He also represents clients before the United States Citizenship and Immigration Services (USCIS). Mr. Blanco graduated cum laude with a Bachelor of Science degree in Business Administration from the McDonough School of Business at Georgetown University. He earned his Juris Doctor degree from Loyola Law School with a concentration in Corporate Law. Mr. Blanco is admitted to practice law in the state of California.

Afshan Randera is an Associate Attorney at the firm’s Los Angeles office. She specializes in business, investment, entertainment and personal immigration to the US, providing in-depth advice to SME’s, large multinational corporations and private individuals on a wide-range of US immigration issues. Ms. Randera’s knowledge and experience has resulted in her obtaining visas and resolving issues at US consular posts throughout the world. Ms. Randera received her Juris Doctor from Western Michigan University and attended the University of Southern California, where she majored in International Relations with a minor in Peace and Conflict Studies. She has adept experience practicing immigration law in London, UK before joining the Wolfsdorf team.


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