Have a US green card? Only give it up if that is what you want

Jamaicans and other Caribbean nationals who are Lawful Permanent Residents (LPRs) or green card holders of the US must recognise their various obligations to maintain that status.

Sometimes green card holders spend a long time outside of the US for various reasons. Note, however, that it is not automatic that long absences equal abandonment of your green card status.

Therefore, as emphasised in part one on this topic, on coming back to the US after a prolonged absence, you should not automatically surrender your green card if asked or pressured to do so by the immigration officer at customs.

Remember that you remain an LPR until a final order is issued by an immigration court judge. This will only happen if the US Government proves to the immigration court judge that you have abandoned your green card status.

No negative consequences for refusing to sign abandonment form

Note, too, that the abandonment form must be signed voluntarily, not under pressure or by trickery. There are no negative consequences for refusing to sign the form.

There might be suggestions by the officer that if you don’t sign you will be detained and put in jail. Neither failure to sign nor abandonment is grounds for detention, as you have lawful status in the USA.

The law requires that rather, when you, as a green card holder, refuse to sign an abandonment form, you must be issued with a form to appear before an immigration judge to determine whether you have lost your LPR status or not.

The appearance date can be immediately or in the future in the US. But, importantly, you will not be detained during that time as you have not committed any immigration violations.

Be prepared to show all your US ties to the immigration officer (and the court, if necessary).

Only give up your green card if you want to

If the officer confiscates your green card, he is required by law to give you some other proof of your green card status.

Officers have even been known to tell LPRs who have been outside of the US for long spells on arrival in the North American country that they relinquish their green cards at the local embassy when they return overseas and to seek visitor’s visas instead.

No law requires this. The key is to act within the US immigration laws to preserve residence and to only give up your green card if you truly wish to do so, without any threats or coercion, and/or if an immigration court has made a ruling of abandonment. Clarity about the law is, therefore, crucial.

An LPR might begin to even think the obligations are too onerous and offer to relinquish that green card voluntarily. This is a very serious step that must be considered from all angles. The process itself is fairly simple to relinquish.

However, the unfortunate truth is that many persons subsequently want to re-apply for a green card or a visitor’s or some other visa. Life changes such as children going to university, unrest in a home country or the need for expensive healthcare have been some of the reasons cited for new applications by people who initially surrendered their green cards.

Realistically, if you qualify for another green card, the US immigration system does not prevent you from submitting a new application. The same is true if you want to apply for a new visitor’s visa. However, the timeframe for the wait for an immigrant visa is increasingly long, and so the odds of getting back a green card that was surrendered has grown exponentially.

Green card holders who might be accused of abandonment should explore ways in which they can stay out of the US for longer than a year. These include applying for a re-entry permit.

Re-entry permit

A re-entry permit establishes that the LPR did not intend to abandon that status, and it allows you to apply for admission to the US after travelling abroad for up to two years without having to obtain a returning resident visa.

To obtain a re-entry permit, file the necessary US immigration application well in advance of your planned trip outside of the USA because there is no guarantee about when it will be acknowledged or even approved. The re-entry permit can only be applied for in the USA, and you will need to do biometrics as well.

There is no rule that you have to be in the US for USCIS to approve your re-entry permit. You can even ask for the permit to be sent to a US Embassy and Consulate overseas.

Many LPRs wrongly assume that because they remained outside the US for a long time their green cards automatically expired and that the US immigration system has removed their LPR status. They may then seek to obtain a visitor’s visa or even an employment-based green card without any fraudulent intention.

This misunderstanding of how green cards work will prove to be an issue sooner than later, as the immigration system will eventually flag that the holder of such a visitor’s visa or employment-based green card is already an LPR. This will, of course, require immediate attention to rectify the record.

Green card holders might best be served by applying for US citizenship as soon as practical.

*This article does not constitute legal advice and is intended for informational purposes only.

Nadine C Atkinson-Flowers is admitted to practice in the USA and Jamaica. Her US practice is in the area of immigration, while her Jamaican practice areas include immigration and general legal consultancy. She has been an attorney for over 15 years in Jamaica and has written articles for several legal publications. She is passionate about access to justice issues and volunteers with several legal, business, children and community service organisations in Jamaica and the US. She can be contacted at [email protected]