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Non-Abandonment of LPR Status – Continuous Residency
It is well established that temporary residence abroad does not render residency abandoned. Matter of Guiot, 14 I&N Dec. 393 (DD 1973); Matter of Vielma-Ortiz, 11 I&N Dec. 414 (BIA 1965); Hana v. Gonzales, 400 F.3d 472, 475-77 (6th Cir. 2005).
In fact, even under the following circumstances, residency was not considered abandoned:
• LPR was out of the country for the vast majority of four years
• LPR had a permanent job, real property, and immediate family in Iraq
• LPR never worked, paid taxes, or procured a bank account or driver’s license in the U.S.
Hana v. Gonzales, 400 F.3d 472, 475-77 (6th Cir. 2005). In this matter, the court determined that the individual’s four year long trip was temporary in nature because her failure to put down roots was due to her desire to help her family safely flee Iraq and to take care of her terminally ill mother-in-law and her return was fixed by an early event—the safe emigration of her family from Iraq to the U.S.
Even “an extended period of absence from the U.S., in appropriate circumstances, can be viewed as a temporary visit abroad if the end of the period of absence can be fixed by some early event.” Matter of Huang, 19 I&N Dec. 749 (BIA 1988).
Notwithstanding the case above, Attorney Pai recommends that a Green Card Holder never leave the U.S. (your place of permanent residency) for more than six weeks, without first consulting with a qualified, licensed immigration attorney.
A temporary visit abroad under INA §101(a)(27)(A), 8 U.S.C. §1101(a)(27)(A) occurs only when (a) the visit abroad is for relatively short period, fixed by some early event, or (b) the visit will terminate upon the occurrence of an event having reasonable possibility of occurring within a relatively short period of time. If the event does not occur within a relatively short period of time, the visit will be considered a temporary visit abroad only if the alien has a continuous uninterrupted intention to return to the U.S. during the entirety of his or her visit. Criteria to determine continuous uninterrupted intent ion include family ties, property holdings, and business affiliations in the U.S. and foreign country. Khodagholian v. Ashcroft, 335 F.3d 1003, 107 (9th Cir. 2003); Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986); Gamero v. INS, 367 F.2d 123 (9th Cir. 1966); Angeles v. District Director, 729 F.Supp. 479 (D. Md. 1990).
The Board of Immigration Appeals and Department of State use the following criteria to determine whether residency has been abandoned:
1. Purpose of departure
2. Existence of fixed termination date for visit abroad
3. Objective intention to return to the U.S. as place of permanent employment or actual home as proven by
a. Family ties
c. Income tax returns
d. Club memberships
Matter of Kane, 15 I&N Dec. 258 (BIA1975); Matter of Huang, 19 I&N Dec. 749 (BIA 1988); 9 FAM 42.22 N.1.1, 1.2, 1.4.