Should I file an I-407?

[Stuart77]

Hi,

First a brief background.

I recently was stopped from flying to America to visit my 15yo daughter by a Homeland Security Agent in Heathrow airport. His reason, though he never once talked to me personally, was that because I still have in my possession my old green old, which expired in 2015, I should not be traveling using an ESTA visa.

I moved to America in Oct 2000 to marry my now ex-wife. I lived there until our relationship broke down for 7 years and decided to permanently move back to the UK, which I did in early November 2007.

Since then I've travelled many times between the UK and the US using ESTA visas and have never had a problem. In fact the same ESTA the HSA cancelled was used in December 2019 when I escorted my daughter home after she visited the UK for xmas.

It has never, not once, been relayed to me that I needed to file an I-407, or any other type of form. I once used my green card at the air port in America to use the shorter customs line and the only thing I was told was not to do it again because moving back to the UK with the intent to reside there invalidate my LPR status. Which appears to have been incorrect advice. I have since then never used it again.

So I've now looked into this a little, I feel like filing the I-407 could open a minefield of problems and I have some burning questions that I don't know where to get the answers.

1. Do I HAVE to file an I-407 to be allowed to travel using an ESTA? I question this because ESTA's have to be approved and surely those approving them would see my travel history just as the HS agent did.
2. All these years I've assumed my LPR status to be invalidated or cancelled. If this is not true, and I still hold LPR status, if I don't file an I-407 can I still travel to the US even though my green card has expired and have no desire to renew it.
3. As an LPR I always believed I had did not have to file a tax return in the US. I'm no longer certain of this. If I am still classed as an LPR should I have been doing a tax return? If so, what are the possible ramifications of not doing so for the past 14 years keeping in mind also that I have never earned enough, I believe, to actually have ever owed any taxes. My net income has never been more than about £40k.
4. If I file the I-407, would I need to worry about an "Exit Tax". If so, what is this?

Thanks in advance if anyone can help me. I haven't seen my daughter now for almost 2 years and now I might not get to see her at all this year.

[newacct]

You may or may not be considered to have abandoned residence. Abandonment of residence is based on a subjective determination of many factors. It is impossible to be absolutely sure unless you try to enter the US with your green card, they put you in removal proceedings, and the immigration judge in removal proceedings (potentially with appeal to the BIA) makes a ruling. Given the length of time and lack of a reason to not be able to return, I would say that you have almost certainly abandoned residence, but again it's technically possible that they could rule that you haven't.

The formal answer to #3 is Yes, you are subject to US taxes on your worldwide income unless and until you file I-407, or you are given a final ruling in immigration court. This is true even if your green card is expired and you have been outside the US for many years, and would likely be considered to have abandoned residence if you tried to return as a permanent resident. See the Publication 519 section on the Green Card Test, and in particular the note:

Until you have proof your letter was received, you remain a resident alien for tax purposes even if the USCIS would not recognize the validity of your green card because it is more than 10 years old or because you have been absent from the United States for a period of time.

You may be able to claim the Foreign Earned Income Exclusion (since you were outside the US for 330+ days in a 12-month period) and/or Foreign Tax Credit to avoid being taxed twice on the same income. If your worldwide income was low enough each year, you wouldn't owe any US tax even if you didn't have any credit or exclusion.

As for #4, the expatriation tax, I am not sure whether you would be considered a long-term resident. (It's possible that your long-term residency is terminated earlier than I-407 filing if you are treated as a resident of a foreign country under a tax treaty). In any case, if your income is so low as to not owe tax, then it's way below the level for you to have expatriation tax anyway.

For #1 an #2, it's unclear. In rare cases it's possible for a permanent resident to enter as a nonimmigrant, but usually it makes no sense to do so. Since you don't want to be a permanent resident anymore (and they almost certainly wouldn't let you in as a permanent resident even if you wanted to anyway), it's probably best to make it official by filing I-407. You have nothing to lose by doing so.

[Stuart77]

Thank you. I appreciate the answer and it's clarity also

The I-407 form has a processing time 2 to 2.5 months once received if I mail it to the office in Vermont.

With this in mind, I am trying very hard to visit my daughter which has never been a problem before now. I was supposed to be there with her right now.

Is it possible to visit her before the form has been processed? i.e. if I apply for a new ESTA, would it be denied because this problem has now been raised, or is it perfectly acceptable to get a new ESTA and travel to the US before or during the I-407 being processed? Before would be if I intend to submit it at port of entry. During would be after I mail the form to the Vermont office but before they have either received it or they have it but it has not been processed yet.

There is a section (question 13) of the form that at face value looks straight forward but the answer depends on how I intend/can submit it for processing.

These are the options available for question 13.

13a - "I am submitting Form I-407 outside of the United States in-person"

13b - "I am submitting Form I-407 outside of the United States by mail"

13c - "I am submitting Form I-407 at a U.S. Port of Entry"

13d - "I am submitting Form I-407 from inside the United States to document that I abandoned my lawful permanent resident (LPR) status in the past. I already abandoned my prior LPR status by leaving the United States to make my permanent home abroad. I did not retain my LPR status. I have since returned to the United States through port of entry by being admitted as a non-immigrant or by being paroled"

Regarding 13a - I understand the USCIS office in London closed permanently in 2020 so I am not able to visit the US embassy to do this. Is it possible to do this by handing it in to an official at Heathrow airport? a Homeland Security Agent for example?

Regarding 13c - I presume I'd need a new ESTA for this option?

Regarding 13d - This is an interestingly worded option. Please correct me if I am misunderstanding this. Does this mean that if I am able to enter the US and I chose this option that I am essentially saying that I am declaring that I abandoned my LPR in the past but am just now filing this form? As I have visited the US many times over the past 14 years using an ESTA/Visa Waiver, I understand that to qualify as "I have since returned to the United States through port of entry by being admitted as a non-immigrant". If this is the case should I put the data I left the US with the intention of living permanently in the UK as the data for question 7: "Date of last departure from the United States"?


Out of pure curiosity, regarding my LPR classification. Could it be argued that because an ETSA is acquired via an online application to the US Customs and Border Control agency which must be approved prior to traveling, that being granted an ESTA and then using it successfully to visit the US, this could be classed as evidence of no longer holding an LPR status?

[newacct]

I believe that I-407 can only be submitted via mail these days.

Entering on the Visa Waiver Program or a nonimmigrant visa does not necessarily imply that you are abandoning permanent residency; since in rare cases it is technically possible for an LPR to enter as a nonimmigrant visitor for a short visit during a stay abroad.

[Stuart77]

Once I file the form do I have to wait before I can visit my daughter?