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.
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?
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))”.1
That 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 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.
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”.2
This 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.
Abandonment means either you or the government did something to terminate your permanent resident status.
In practice, abandonment typically means one of these three things happens:
Allowing your green card to expire none of those things. It is not an act of abandonment.
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.