The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
COVID-19 has impacted many things we took for granted for decades as it reverberates through every corner of the world and disrupts every aspect of our lives. Green card holders (Lawful Permanent Residents, or LPRs) overseas who plan to come back to the U.S. will not only have to deal with health concerns associated with international travel but also many practical and economic inconveniences caused by the imposition of significant governmental restrictions in many regions of the world. As a result, many are forced to stay overseas for a protracted period. This presents a unique challenge when it comes to maintaining their permanent resident status.
Upon each entry into the U.S., an LPR is required to present a valid green card and show that he or she is “returning to an unrelinquished lawful permanent residence after a temporary visit abroad.” If the absence is less than a year but more than 180 days, the LPR will be subject to more scrutiny at the port of entry. If it can be shown that the absence was caused by COVID-19 restrictions, the LPR will likely be admitted into the U.S.
If the absence is more than a year without a re-entry permit (the re-entry permit is a travel document that allows LPRs to maintain permanent residence status when traveling abroad for up to 2 years. It is not an option for LPRs who are currently overseas because it can only be applied from within the U.S.), the green card will technically be invalidated under the regulations. In this case, an LPR will typically have two choices: apply for an SB-1 visa or arrive at the border and assert no LPR abandonment.
Applying for a Returning Resident (SB-1) Visa at a U.S. Consulate overseas
Under the Immigration and Nationality Act, the SB-1 visa is a “special immigrant” visa for an immigrant who is returning from a temporary visit abroad. An SB-1 visa applicant must demonstrate that (1) he or she departed the United States with the intention of returning to an unrelinquished residence and that (2) the alien’s stay abroad was for reasons beyond the alien’s control and for which the alien was not responsible.
We will discuss relevant case law regarding the first prong later in this article. The second prong is relatively easy to satisfy if it can be shown that traveling from the LRP’s foreign residence to the US has been impacted by COVID-19, or if traveling would place the LPR at risk given his or her health conditions.
Coming back to the U.S. directly and assert no abandonment at the port of entry.
An LPR who has been absent for more than a year can choose to appear at the port of entry and assert no abandonment. The Customs and Border Protection (CBP) officials at the port of entry can waive the LPR into the US if there is a convincing reason for his absence. In this case, the LPR may be asked to complete Form I-193 to apply for an SB-1 visa waiver and pay the $585 filing fee. While this appears to be a less onerous endeavor than applying for an SB-1 visa at a U.S. Consulate, it is a much riskier approach as the CBP officials at the port of entry have the full discretionary power to grant or deny the waiver. It is also worth noting that even if the waiver is not granted, an LPR has the right to a hearing before an immigration judge, which would afford him or her a chance to relitigate the abandonment issue in an immigration court proceeding.
In determining whether an LPR has abandoned the permanent resident status, both options above will look at whether the LPR’s visit abroad was temporary in nature. In Chavez-Ramirez v. INS the court clarified the exact meaning of “temporary visit abroad” after reviewing decades of sparse case law on abandonment:
[A] permanent resident returns from a “temporary visit abroad” only when (a) the permanent resident’s visit is for “a period relatively short, fixed by some early event,” or (b) the permanent resident’s visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit. Chavez-Ramirez, 792 F.2d at 936-37.
The big takeaway from Chavez-Ramirez is that COVID-19 does not confer blanket protections if an LPR does not possess continuous uninterrupted intent during his absence. Further, in Singh v. Reno, it is well settled that “[a]n alien’s desire to retain his status as a permanent resident, without more, is not sufficient; his actions must support his professed intent.” Therefore, it is important for an LPR seeking admission to provide documents to show his or her intent when pursuing the options above. Factors Chavez-Ramirez provided that to be considered generally include family ties, property holdings, and business affiliations in the U.S. and abroad. It is also helpful to provide relevant documentation if the LPR initially booked flights (or made any other documentable efforts) to return to the U.S. at the onset of the COVID-19 outbreak that later got canceled due to travel restrictions.
Last but not least, as more and more countries have now started to ease travel restrictions, LPRs overseas should start making plans to come back to the U.S. sooner rather than later. Khoshfahm v. Holder is a case worth examining. In Khoshfahm, the LPR (aged 13) traveled back to Iran with his parents right before the terrorist attacks of September 11, 2001. The terrorist attacks prevented the family from getting a ticket for two or three months thereafter. In November 2001, Khoshfahm’s father was hospitalized due to a heart condition. The condition lasted several years and restricted his ability to travel. Khoshfahm’s mother had to stay in Iran to care for the father, and Khoshfahm stayed in Iran with his family until 2007. In determining whether Khoshfahm’s parents ceased to maintain their continuous uninterrupted intent before Khoshfahm turned 18, the court found that it is critical to examine if the father failed to purchase a ticket after his condition improved. The court eventually decided the case in Khoshfahm’s favor because the government did not meet its burden of proof with respect to the father’s failure to purchase a ticket after traveling became possible for him. However, Khoshfahm demonstrates that the timing of return is also important, and procrastination may negatively impact the case. Even if one has a strong case now due to COVID-19 related reasons, an LPR can be found to have abandoned his or her permanent residence if the trip back to the U.S. gets delayed beyond a reasonable timeframe after the COVID-19 restrictions are lifted.
The unique challenges for LPRs created by the COVID-19 pandemic are not impossible to overcome. With the right strategy and forethought, an LPR should be able to re-enter the U.S. without abandoning their hard-earned green card. It just may take a little more effort and paperwork during these unprecedented times.
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 19, 2020 edition of the The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.
&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;img height=”1″ width=”1″ style=”display:none;” alt=”” src=”https://dc.ads.linkedin.com/collect/?pid=177929&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;fmt=gif” /&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;