Did you Expatriate if your Green Card Expired?

Today’s topic: Letting your green card expire as an act of expatriation?

This question is one that has come up a number of times in cases I’ve worked on:

If I allow my green card to expire, does that mean I have expatriated?

In my experience, this question is almost never asked. Instead, it is usually assumed that if your green card expires and you have held it for long enough to be a long-term resident, you must have expatriated.I will take a look at whether it is true that you can expatriate by allowing your green card to expire.

A green card holder must be a "long-term resident" to expatriate

The term “long-term resident” describes a special subset of green card holders.The term is defined in Section 877(e)(2) of the Internal Revenue Code: a green card holder is a long-term resident if they hold the green card “in at least 8 taxable years during the period of 15 taxable years ending with the taxable year” in which they expatriate.Only citizens and long-term residents can expatriate and be subject to the exit tax rules. If you have a green card but you are not a long-term resident, and you turn in your green card, then you are not an expatriate as defined by the Code, and you are not subject to exit tax.For the remainder of this discussion, let us assume that the person who wants to allow their green card to expire as an act of expatriation is, in fact, a long-term resident.Therefore, the question we will answer is: if a long-term resident allows their green card to expire, is that an act of expatriation?

A green card holder must cease to be a lawful permanent resident to expatriate

Having a green card means that your official immigration status is “lawful permanent resident” (LPR).A green card holder who is a long-term resident becomes an expatriate when he or she “ceases to be a lawful permanent resident of the United States (within the meaning of Section 7701(b)(6))".¹That means we look at Section 7701(b)(6) to see what it means to cease to be a lawful permanent resident of the US.

There are two ways to cease to be a LPR

There are two ways that you can cease being a lawful permanent resident, according to Section 7701(b)(6): the lawful permanent resident status is revoked, or it is abandoned.First let us look at what it means to have your green card revoked, then we will look at what constitutes abandonment. If allowing your green card to expire falls into neither of these categories, then you have not ceased to be a LPR, and you have not expatriated.

Way #1: Revocation

Revocation occurs when “a final administrative or judicial order of exclusion or deportation is issued regarding the alien individual. For purposes of this paragraph, the term “final judicial order” means an order that is no longer subject to appeal to a higher court of competent jurisdiction".²This is a long-winded way of saying you got deported. Allowing your green card to expire does not mean you got deported. It is not an act of revocation.

Way #2: Abandonment

Abandonment means either you or the government did something to terminate your permanent resident status.Resident status terminates when it is “administratively or judicially determined to have been abandoned.”³ This can be done in two ways:⁴

1. The government can initiate the process, either by a consular official or the DHS. This is complete when there is a court or administrative order that cannot be appealed.
2. The individual can initiate the process, by filing Form I-407 or mailing a letter of intent to abandon along with the green card.

In practice, abandonment typically means one of these three things happens:

1. You voluntarily file Form I-407 (or a substitute letter of intent) along with your green card.
2. The Customs and Border Patrol stops you from entering the country and holds you at the border until you “voluntarily” sign Form I-407 and surrender your green card.
3. You get deported.

Allowing your green card to expire none of those things. It is not an act of abandonment.

If it is neither revoked nor abandoned, you are not an expatriate

A green card must be either revoked or abandoned for your LPR status to cease, and your LPR status must cease for you to be an expatriate. If you have not abandoned your green card and the government did not revoke it, then you did not expatriate.Allowing your green card to expire will only put you in a situation where you no longer have a valid green card, but you still have to keep filing US tax returns as a resident. You remain a taxpayer subject to US tax on your worldwide income until you cease to be a LPR either by revocation or abandonment.