A lawful permanent resident (LPR) of the United States, often referred to as a green card holder, possesses numerous rights under U.S. immigration laws and the Constitution, including the entitlement to reside and work indefinitely within the country. Nevertheless, these rights are not unconditional, particularly when the individual travels outside the U.S. and seeks to return. Upon reentry, LPRs must undergo inspection by U.S. Customs and Border Protection (CBP) officials at entry points, making it essential to comprehend the rights retained by LPRs, the potential scrutiny they may encounter, and how their legal status could be influenced by various factors such as the duration of their absence, any criminal history, and their conduct during inspection. Grasping these aspects is crucial for protecting permanent resident status and avoiding situations that could inadvertently lead to removal proceedings or denial of entry. Fundamentally, the right of an LPR to return to the U.S. is based on the notion that permanent residency is meant to be a stable and enduring status. However, immigration laws introduce exceptions to this assumption of permanence. The Immigration and Nationality Act (INA) stipulates that an LPR returning from a brief trip abroad is not deemed to be seeking admission unless specific disqualifying conditions are met. According to INA § 101(a)(13)(C), lawful permanent residents are not classified as applicants for admission unless they meet one of six criteria: (1) they have abandoned or relinquished their LPR status; (2) they have been absent from the U.S. for a continuous period exceeding 180 days; (3) they have engaged in illegal activities after leaving the U.S.; (4) they departed while in removal proceedings or were inadmissible at the time of reentry due to a criminal offense; (5) they committed a criminal act that would make them inadmissible; or (6) they entered without inspection or through fraudulent means.

In the absence of applicable grounds, a Lawful Permanent Resident (LPR) is generally not considered to be seeking admission and is entitled to reentry as a matter of right. However, in practice, Customs and Border Protection (CBP) officers at entry points possess significant discretion to interrogate returning LPRs, scrutinize their documentation, and assess whether their absence from the U.S. was temporary or indicative of an abandonment of residency. Abandonment is frequently a misunderstood and prevalent reason for increased scrutiny. An LPR who travels outside the United States for an extended duration, particularly for six months or longer, may encounter inquiries regarding their intention to maintain U.S. residency. CBP evaluates several factors when determining abandonment, including the duration of absence, the purpose of travel, connections to the U.S. such as employment, homeownership, familial ties, tax filings, and the existence of return tickets or other evidence of intent to return. It is important to note that even travel under a reentry permit does not exempt an LPR from abandonment determinations, although it serves as strong evidence of the intent to return. Furthermore, it is essential to recognize that lawful permanent residents are entitled to due process rights under the Fifth Amendment of the U.S. Constitution. This ensures that an LPR cannot be removed or denied entry without prior notice and an opportunity to respond. If CBP suspects that an LPR has abandoned their status or is otherwise inadmissible, the officer may escalate the matter to an immigration judge for formal removal proceedings. In such instances, the individual maintains the right to legal representation, to contest the government’s evidence, and to present their own evidence to demonstrate that they did not abandon their residency or that they should not be deemed inadmissible.

A lawful permanent resident (LPR) who has spent more than 180 days outside the United States is deemed to be applying for admission under INA § 101(a)(13)(C)(ii), which may lead to a more thorough inspection. It is crucial to understand that while Customs and Border Protection (CBP) may permit such an LPR to enter the country, they can still issue a Notice to Appear (NTA), initiating removal proceedings where an immigration judge will determine the issues of admissibility and the potential loss of permanent residency. The risk of the government asserting that the individual intended to reside elsewhere and thus abandoned their U.S. residency increases with longer absences, particularly those exceeding one year without a reentry permit. Furthermore, even LPRs who have been outside the U.S. for less than 180 days may encounter challenges if they have participated in activities that render them inadmissible, such as criminal offenses, immigration fraud, or threats to national security. Specific convictions, including those involving moral turpitude or aggravated felonies, can make an LPR inadmissible upon their return and subject them to removal. In such cases, the LPR may not have an automatic right to return to the U.S. and will be regarded as seeking admission under the legal definition. CBP officers may either detain the LPR or allow them to be released under supervision while removal proceedings are pending. Although the individual retains due process rights, the consequences are considerably more severe.

Another significant factor to consider is how a Lawful Permanent Resident (LPR) is interrogated at the port of entry. LPRs are not mandated to have legal representation during primary or secondary inspections conducted by Customs and Border Protection (CBP). Nevertheless, they possess the right to remain silent and may refuse to respond to inquiries that are not directly pertinent to the inspection process. However, declining to answer standard questions regarding travel history, trip purpose, or related subjects may result in increased scrutiny or referral to secondary inspection. If CBP suspects fraudulent activity or abandonment, or believes the individual is inadmissible, they may detain the person for further questioning and, in certain instances, issue a Notice to Appear. At this juncture, it is crucial for the individual to promptly seek legal advice, as removal proceedings are adversarial and could lead to the forfeiture of permanent residency. Furthermore, there is a notable difference between returning LPRs and other noncitizen categories concerning the protections provided under the Fourth Amendment, which safeguards against unreasonable searches and seizures. At the border, the government possesses broader powers to perform searches without a warrant or probable cause, a principle known as the ‘border search exception.’ Nonetheless, LPRs retain certain rights. For instance, CBP is prohibited from engaging in extended questioning or detention without valid justification, and if the government attempts to utilize evidence obtained in violation of constitutional rights during removal proceedings, the individual has the right to contest its admissibility.

For lawful permanent residents (LPRs) encountering inadmissibility challenges upon reentry due to a criminal conviction or other reasons, there may be available forms of relief, such as cancellation of removal under INA § 240A(a). To be eligible, the individual must have maintained lawful permanent resident status for a minimum of five years, have continuously resided in the United States for seven years following lawful admission, and must not have been convicted of an aggravated felony. The granting of relief is discretionary, indicating that even if the individual meets the statutory requirements, the immigration judge will assess the overall circumstances, including the nature of the offense, duration of residence, familial connections, and contributions to the community. In instances where the LPR has engaged in fraud or willful misrepresentation to obtain an immigration benefit, the government may commence removal proceedings under INA § 237(a)(1)(A). Nevertheless, this also necessitates that the government fulfill its burden of proof, and the individual retains the right to challenge the allegations and provide evidence of mitigating circumstances or eligibility for a waiver. Importantly, the burden of proof in removal proceedings varies based on whether the individual is classified as an applicant for admission. If the individual is considered to be seeking admission, the onus is on them to demonstrate admissibility. Conversely, if they are not seeking admission and are instead facing removal as a deportable alien, the burden shifts to the government to establish removability.

For lawful permanent residents (LPRs) planning to return who foresee potential challenges at the border due to prolonged absence, criminal records, or previous immigration complications, it is prudent to seek advice from an immigration attorney prior to traveling. Obtaining proactive legal counsel may involve assembling a collection of documentation that demonstrates ongoing ties to the United States, such as tax returns, evidence of property ownership or rental agreements, employment documentation, affidavits from relatives, and copies of reentry permits or advanced parole papers. This preparation can prove essential in the event of secondary inspections or disputes regarding reentry. Furthermore, LPRs must recognize the necessity of keeping their green card valid. While not renewing an expired green card does not automatically revoke LPR status, it may lead to practical challenges during reentry, employment verification, or benefit applications. It is advisable to carry a valid Form I-551 or proof of its timely renewal when traveling internationally. Moreover, any time an LPR receives a Notice to Appear or any formal communication from immigration authorities, it is crucial not to disregard it, as failing to appear in immigration court may result in in absentia removal and loss of status. Additionally, it is noteworthy that some returning residents may apply for a reentry permit if they plan to stay outside the U.S. for over one year but less than two. This permit acts as evidence of the intent to return and mitigates the risk of abandonment findings. Although it does not guarantee readmission, it significantly supports the LPR’s assertion of maintaining residency. Reentry permits must be requested while physically present in the United States and cannot be acquired from abroad.

Lawful permanent residents must be aware of the consequences associated with prolonged absences, even if no individual trip surpasses 180 days or one year. Regular extended travels abroad may raise concerns regarding abandonment and could complicate naturalization processes, where continuous residence and physical presence are closely examined. USCIS may evaluate overall travel habits and question the individual’s genuine intention to establish the United States as their permanent residence. In conclusion, while lawful permanent residents possess the legal right to return to the country in most situations, this right is subject to certain conditions and restrictions under immigration law. Lengthy absences, criminal offenses, fraudulent activities, or abandonment of residence can all lead to scrutiny, delays, or removal actions. It is vital for LPRs to comprehend their legal standing, prepare adequately for international travel, maintain strong connections to the U.S., and seek legal advice when any of these risk factors are present. Diligence and preparation are critical for safeguarding one’s status and avoiding unintentional involvement in the intricate processes of U.S. immigration enforcement.

By: Karim Jivani

Karim Jivani is an Associate Attorney at Reddy Neumann Brown PC who focuses on employment-based non-immigrant visas. Karim’s practice covers all phases of the EB-1A and EB-2 NIW visa process including filing petitions, responding to Requests for Evidence (RFE), and drafting motions and appeals. Karim has also worked on all aspects of H-1B, L-1, I-140, and VAWA petitions.