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In 2020, Oxford English Dictionary chose an assortment of words to define the year including “Blursday” and “coronavirus.” At the same time, I wrote an article about the return options for green card holders (Lawful Permanent Residents, or LPRs) who have been abroad for more than a year. The issue has become exceedingly relevant as many LPRs, and in the year since we have learned a great deal about the developments and strategies surrounding this topic. If I were to assign words to this issue in the “year of blursdays,”my top picks would be “strategic” and “hopeful.” In my opinion, an LPR can increase the chance of success in maintaining their green card by adapting to the new developments and adopting the right strategies.
Generally speaking, an LPR should be able to re-enter the United States after spending less than one year abroad, although an absence between 6 months and one year may result in more scrutiny at the port of entry. If the absence is more than a year, the LPR can apply for a returning resident (SB-1) visa at a US consulate or return to the United States directly and request a waiver at the border. In either scenario, the LPR needs to show that he or she has not abandoned the permanent resident status.
1. In most cases, one option is clearly better than the other
The SB-1 visa is a type of special immigrant visa provided under INA 101(a)(27)(A). 22 CFR 42.22 lists the specific requirements. Among them is the requirement that the protracted stay abroad “was caused by reasons beyond the alien’s control and for which the alien was not responsible.” On the other hand, 8 CFR 211.1(b)(3) provides that the border waiver (Form I-193) may be granted if the Custom and Border Protection (CBP) officer “[i]n the exercise of discretion … is satisfied that the alien has established good cause” for his or her failure to present a valid SB-1 visa.
In practice, it usually takes a mountain of evidence to prove the “beyond personal control” element for the SB-1 visa. For the border waiver option, this element is not present in the statute, and CBP officers are also allowed to exercise discretion when adjudicating the waiver. This means it is more likely that they can consider special circumstances, like a global pandemic. This suggests that the border waiver option should be the preferred route for most cases.
Favoring the border waiver is also consistent with what many returning LPRs have seen in the past year. Since the revival of international air travel in late 2020, there have been numerous reports of SB-1 visa denials in many consulates across the globe. In the meantime, many LPRs have been successful in obtaining the waiver at the border. Our clients report that most CBP officers are empathetic when processing their border waivers. Some waivers were even granted informally without the need to fill out Form I-193. It also appears consistent across all major international airports, so an LPR can choose the most convenient port of entry when booking the return trip.
2. Communication with the airline is key for the border waiver option
Although there is little need to engage in “forum shopping” when planning your return, it is nonetheless imperative to communicate with the airline before booking the trip to the U.S. Up until spring 2021, there were multiple incidents where the airline refused to board the LPR because they determined (of their own volition) that the underlying permanent resident status was invalid. Airlines should not be making decisions on admissibility under the US immigration law outside the parameters of the document requirements. This problem was alleviated in March 2021 when CBP published guidance through the Carrier Liaison Program reiterating that an LPR with a valid, unexpired green card should be allowed to board. We are still hearing sporadic reports of similar incidents in some countries, but it is not widespread. Therefore, it is important for an LPR to communicate with the airline and ascertain its boarding policy before booking the trip. On the day of travel, it is also a prudent practice to arrive at the airport early and bring a copy of the CBP guidance as a backup plan.
3. Delays at some U.S. consulates for the SB-1 option
For the SB-1 option, many U.S consulates are still very limited in capacity due to the pandemic. SB-1 visa interview slots can be sparse, due to scheduling constraints. If an LPR can land an interview, additional visa processing delays are also expected. This means LPRs will likely accrue even more time outside of the U.S. if the SB-1 visa is denied. While it can certainly be less intimidating and stressful to get a determination of your permanent resident status without embarking on an expensive and arduous journey, an LPR should carefully assess the risks and benefits of applying for an SB-1 visa at a U.S. consulate.
4. Prepare for the worst and hope for the best
You are not alone if you are still hesitant about the border waiver option due to fears of the worst possible outcome. This is certainly understandable. As H.P. Lovecraft said, “the oldest and strongest kind of fear is fear of the unknown.” Therefore, the last important piece to the puzzle is to explain what exactly the worst possible outcome is and how it can be addressed.
First and foremost, there are only two ways for an LPR to lose his or her permanent resident status: by voluntarily abandoning it by filing a Form I-407, or a final order of removal is issued by an immigration judge in the removal proceeding – and only after all appeal options have been exhausted.
At the border, if the CBP officer is not satisfied and determines that abandonment has occurred, the LPR may be asked to sign a Form I-407, which the LPR should refuse. The officer may take the LPR to a secondary inspection area and prepare a printed version of the LPR’s statement. In this, the LPR should be clear they never intended to abandon their status since this will become part of the record in the removal proceeding. Normally, an LPR will then be issued a Notice to Appear (NTA) so that an immigration judge can make a formal determination. Typically, the CBP officer will still admit the LPR, and detention at the border is very rare. If the physical green card is confiscated, the LPR would be provided with an alternative form of document as proof of the permanent resident status.
One notable advantage of having a formal hearing in front of an immigration judge is the complete reversal of evidentiary standards. At the border, the burden of proof is on the LPR to establish a good cause for the lack of a valid visa and prove that abandonment has not occurred. The standard of review at this stage is the preponderance of the evidence, which can be met by proving that it is more likely than not (a greater than 50% chance) that the aforementioned claim is true. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). On the contrary, in a removal proceeding, the government bears the burden of proof, and must establish that abandonment has occurred by “clear, unequivocal, and convincing evidence.” Woodby v. I.N.S., 385 U.S. 276, 277 (1966). The “clear and convincing” standard by itself is a relatively difficult standard to satisfy as it requires that the claim be substantially more probable to be true. For removal cases, “unequivocal” is further added to the already rigorous standard. The Supreme Court explained that “the term ‘unequivocal,” taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases.” Addington v. Texas, 441 U.S. 418, 432 (1979). Simply put, the evidentiary standard is so high that removing an LPR based on abandonment in the removal proceeding is almost tantamount to convicting someone of a crime. While victory is never a guarantee, an LPR with solid evidence should remain hopeful that he or she will eventually prevail in the removal proceeding or a subsequent appeal even in the worst-case scenario.
5. Special circumstances warrant special strategies
Every case is different and special circumstances can arise. Therefore, it is critical for an LPR to engage with an experienced immigration attorney to determine the right strategies for the case. For instance, it may be a better option for some LPRs, such as parents of a U.S. citizen, to submit Form I-407 to a U.S consulate and start a new green card process, especially if an aging parent is still concerned about traveling in the near-term future. For a conditional resident with a pending I-751 or I-829 petition, if the initial 18-month extension has expired, the airline may very likely deny the passenger from boarding the plane. Other than applying for the SB-1 visa, one potential solution to approach the issue is to enter the United States from Mexico or Canada by land once they reopen their borders to international travelers.
As an immigration attorney, I understand how hard it was for many LPRs to get the status in the first place. For many people, losing the status would be devastating. However, there are reasons to remain hopeful if the case is handled properly by an experienced attorney. I hope the points above have adequately explained why I picked “strategic” and “hopeful” as words of the past year for LPRs who are stuck outside the United States during the COVID-19 pandemic.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the August 23, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.