Lawful Permanent Residency
The INA Section 318 requires persons who want to become naturalized as US citizens to show that they have legally entered the US. Such
individuals must demonstrate they have permanent residency as per the applicable INA provisions when being admitted and adjusting status.
The requirement applies on an applicant’s first admission as an LPR (lawful permanent resident) or when adjusting the LPR status. Individuals re-entering the US may also need to meet this requirement.
Before you file for naturalization, you must show you are a lawful permanent resident. If your LPR status is questionable i.e., it wasn’t acquired lawfully, you become automatically ineligible for naturalization even if you gained entry as a lawful permanent resident and you are a PRC (Permanent Resident Card) holder.
Eligibility for Lawful Permanent Residency
Applicants wishing to establish they were admitted to the US lawfully for permanent residence must meet requirements for being admitted as immigrants seeking adjustment of status.
Suppose you got permanent residency via willful misrepresentation, fraud, or other illegal means that aren’t compliant with INA provisions. In that case, you aren’t considered to have gained lawful admission for permanent residency in the US.
When Does a Person Become a Lawful Permanent Resident?
The effective date of becoming a lawful permanent resident corresponds with the date an individual is admitted into the US via an immigrant visa or when the USCIS approves the application for adjustment of status.
However, there are exceptions. The exact date can be earlier than the date the USCIS approves adjustment of status. In such a scenario, the date is known as the rollback date. The effective date of gaining lawful permanent residency is rolled back in several scenarios.
For instance, if the applicant in question is an asylee (a person who is a refugee but is already present in America or actively seeking admission at any US port of entry), their effective date of permanent residency is considered to be one year before the date their application is approved.
Refugees are usually given lawful permanent residency the day they enter the US. Parolees also become LPRs or adjust status as per the Lautenberg Amendment on the inspection and parole date in the US.
Noncitizens admitted to the US under the CAA (Cuban Adjustment Act) become lawful permanent residents when they arrive or are admitted to the US. Alternatively, they can also be LPRs 30 months before filing an adjustment of status application (whichever scenario is later).
Principal applicants given adjustment of status as per the LRIF provisions of the Defense Authorization Act -2020 become lawful permanent residents on the date representing their earliest arrival in America or as of 20th November 2014 if the applicant can’t establish residence earlier. Eligible family members who get their residency status adjusted as per the LRIF become lawful permanent residents of the US on the date of their earliest arrival or receipt date of their adjustment application if they can’t establish residency earlier.
How is LPR Status Confirmed?
Individuals who successfully get lawful permanent residency are issued a special card – PRC (Permanent Resident Card). The card acts as evidence of a noncitizen’s lawful permanent residency status.
Lawful permanent residents aged 18+ years are supposed to travel with their permanent resident cards in their possession to prove their status if need be. The card contains basic information such as the date when a person was given LPR status as well as how they are classified.
It’s worth noting that permanent resident cards expire or get lost. The holder must file a special form – Form I-90 to get a replacement card if this happens. The USCIS issues temporary evidence of a person’s LPR status through an ADIT stamp (Alien Documentation Identification & Telecommunication) stamp.
However, such stamps can’t be issued to applicants who have pending Form N-400s (application for naturalization) unless the form was filed alongside another form (Form I-90) or Form N-400 was filed over 6 months before PRC expiry.
What if I Abandon My Lawful Permanent Residency Status?
A person is considered to have abandoned their lawful permanent residency if they no longer intend to stay in the US after leaving.
If you abandon LPR status, you lose your eligibility for naturalization. Applicants for naturalization need to be legal permanent residents. What’s more, they need to have maintained a legal permanent residence status for a while. While the USCIS can consider some scenarios that can lead to abandonment and allow naturalization, some conditions must apply. The USCIS assesses available evidence linked to abandonment to establish eligibility for naturalization.
Abandonment of legal permanent residency can affect a minor under their parent’s custody/control. Although a person is allowed to travel outside America, the length of time they spend outside and the circumstances surrounding their tip abroad will determine if they have abandoned their status or not.
Suppose you are found to be ineligible for naturalization because you don’t meet the conditions required to maintain LPR status continuously. In that case, Form I-862 (Notice to Appear) will be issued to subject you to removal proceedings officially. The USCIS follows this up by declining your naturalization application. An IJ or immigrant judge makes the final determination on whether you abandoned your LPR status or not. Lawful permanent residency status isn’t lost up until the immigration judge issues an order formalizing removal.
What Will Determine Abandonment of Lawful Permanent Residency Status?
The USCIS can choose to establish if an applicant failed to establish LPR status because of abandoning their status. This can happen when naturalization applications are being reviewed as well as during the interview. Applicants must show they didn’t objectively want to abandon their LPR status.
The USCIS checks many factors when deciding the reasons behind a person abandoning their lawful permanent residency status. Those factors include but aren’t limited to if the person still has ties to people or entities in America. The USCIS will also check a person’s intentions for returning to America as a lawful permanent resident. Other factors considered include the length of stay abroad and the purpose of traveling abroad.
There’s more to lawful permanent residency than what is discussed above, if you wish to seek lawful permanent residency, naturalization of challenged abandonment of residency, consult an immigration attorney first.
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