On Mar 02 2021 by F. Oliver Yang

COVID One Year Later: US Green Card Holders Still Abroad

A client wrote to us with a very common scenario: he is a UK citizen and US permanent resident (US green card holder) with a tenured position at a large American university. He left the U.S. for spring break in March 2020 and was already in the UK when his university closed for the first COVID-19 lockdown. After teaching the 2020 spring semester virtually, he remained in the UK for the fall 2020 semester on research leave. There was also a UK government advisory against non-essential travel.

The plan was to return to the U.S. in January for the spring semester, but a new strict lockdown was introduced in the UK in late December as a new COVID-19 variant emerged. Now, he would ideally like to stay in the UK until he is vaccinated but is concerned that permanent residents who stay out of the U.S. for more than a year lose their green cards. Knowing that applying for an SB-1 returning resident visa is difficult and subject to long delays now since embassies are closed, he worried about losing his status.

 What are his options to re-enter the U.S. after one year and retain his permanent residence status? If his permanent resident status is revoked, would his university no longer be able to employ him since he would not have US authorization?


Can a green card holder stuck abroad re-enter the U.S. after more than one year?

We have received many inquiries from US green card holders that are still overseas for one year or more. As we approach the one-year mark of when the COVID-19 pandemic first swept the globe, many US green card holders are facing a similar and difficult dilemma: risk losing their green card and potentially their job or defy travel restrictions while putting their and others’ health at risk.

The general requirements of maintaining permanent residence (green card) status are very flexible, even before the pandemic. There are two different requirements that you want to keep in mind:

  1. Documentation
  2. Time spent abroad

Regarding documentation, if you have not officially abandoned your green card and are returning to the U.S. after spending less than one year abroad, then generally speaking you should be able to re-enter the United States with your valid green card. The six-month requirement that many green card holders have heard about is often misunderstood as a rule about loss of the green card.  In fact, the only thing that a six-month absence does is increase the chances of additional questioning by a CBP officer.

A lot of time abroad can also be an issue even if you follow the six months guideline as a hard and fast rule. For example, if you spend a total time abroad of five years but you did return every six months for only a few days at a time, you are risking that the government will question your absence from the U.S. and determine you have abandoned permanent resident status.

During COVID-19, there has not been any specific rule published that creates a special carve-out for the unprecedented global disruption of international travel at this magnitude. So, for the many green card holders who may be approaching the one-year mark of being outside the U.S., there is not some “COVID-19 clause” that will automatically allow them to enter the U.S. without questioning once it is safe for non-essential travel again.

However, the residency requirements, as stated previously, are already flexible. When the green card holder is re-entering the United States, the border officer will be tasked with determining where their “ties” are in terms of living and working – are there more “ties” for them in the U.S. or their home country? An officer might determine, based on the green card holder’s explanation, that the COVID-19 travel restrictions were truly a temporary disruption to them residing in the U.S.

If a green card holder reading this is currently abroad and is nearing the one-year mark of living outside of the U.S. due to COVID, our general recommendation is to return to the U.S. now, as long as it is safe to do so. It will be better to return than to deal with the repercussions that might arise later. Before the one year is up, your green card is still a valid document to enter the U.S., even during COVID.

For others that will not be able to return to the U.S. safely before it has been one year since their departure, there are a few options to eventually return and not abandon their permanent resident status.

First, you cannot just “lose” your permanent resident status. You have to officially abandon it by filing a form (I-407), or the government has to make a formal decision that takes it away from you. Second, officers at the border or port of entry do not have the power to revoke your permanent resident status. So, if you believe you have kept your permanent resident status and there is a disagreement with an officer, you are entitled to a formal hearing with an immigration judge and may be represented by a lawyer at that hearing. This is how you can prove your ties to the United States and explain why you were temporarily abroad. The evidence that will help prove this might be owning property in the U.S., filing taxes as a resident, employment, bank accounts, or family living in the U.S. If you present the factors that kept you away for so long and the evidence you have ties in the U.S. at the port of entry, the CBP officer may not challenge your permanent residence status at all.

You may be very anxious about showing up at the border without knowing exactly how it might go. Many are worried about a tense situation where an officer challenges their status or tries to convince them to abandon their green card. This might be particularly worrisome for a foreign national who may not be fluent in English. If you have been out of the U.S. for more than a year and your green card is not expired, the officer can process a visa waiver. Most of the time, the officer doesn’t formally prepare anything but just makes a note in the system that they allowed you back into the country. If the officer decides a formal visa waiver application is required, you might be required to pay a fee but you will be allowed to enter the country.

With the visa waiver, the officer might also give you a warning to get a re-entry permit that next time you are planning to be out of the country for such a long period of time. In the case of COVID though, this would not have been possible, as you have left the U.S. expecting to be gone for a few weeks or months at worst. But as the pandemic has stretched on, it’s now been a year.

So, what else might happen when re-entering? If the officer is insisting that you have abandoned your green card, they will take you to a secondary inspection area and take a statement from you. They will ask you questions about your ties to the U.S.: filing tax returns, your employment, your primary residence, etc. They are looking for strong connections to the U.S., so make sure to point out evidence that they may not even ask about like family in the U.S., a temporary overseas work assignment, your housing, bills, etc. They will provide you with a printed version of the statement. Be sure to carefully review this document for accuracy. Normally, they will process you with a “notice to appear” (NTA) and you would not be detained. They could detain you, but permanent residents are typically allowed to re-enter and then attend their court date with an immigration judge. They will keep your green card, but it is important to remember that the physical green card is not your status.

At this point, it is essential to engage with an immigration attorney if you haven’t already. During this time, you ideally should solidify your ties to the U.S. and gather your evidence before your court date. Essential documents of why your trip overseas was longer than expected, if a relative was severely sick, or maybe it took longer than expected to sell a property. Litigation might continue for years, but persistence is key.

Can the airline stop you from boarding a plane to the U.S.?

There have been some reports of airlines not letting people board airplanes as the airlines are becoming more in sync with immigration at destination countries, especially during COVID. Airlines have direct access to Customs and Border Protection. In this case, the airline customer service representative needs to escalate the issue through their superiors to trigger a line of communication with CBP. From there, immigration can confirm current immigration status and can permit you to board. We have had clients that have had an expired green card or have even lost their physical green card and were still able to board their plane. Then you can deal with inquiries on your permanent resident status once you arrive in the U.S.

How hard is it to get an SB-1 visa?

The application requirements for an SB-1 are very similar to the requirements for re-entry outlined above, in that you will need to show the reasons for your long absence from the U.S. were beyond your control. The application process for an SB-1 visa, also known as the Returning Resident Visa, can be more complicated and lengthier than re-entering at a US port of entry. First, you will need to physically go to a US consulate in your home country to apply and for 1-2 interviews. This can be problematic currently since many are still closed due to COVID.

There are some pros and cons to pursuing an SB-1 visa to consider. Not knowing why exactly, but consulate officers in your home country seem more reluctant to accept that you have strong ties to the U.S. Maybe it’s because you are still physically located in your home country instead of standing on US soil, or there are other factors at play. Data show that cases that aren’t very strong often lose when trying for an SB-1 visa.

On the other hand, it can be less intimidating and stressful to know your situation without a long and expensive journey back to the United States. For immigrants who aren’t fluent in English, discussing the details of their status at the border can be too overwhelming and stressful. So, if it’s more comfortable for you to have a formal answer before trying to return to the U.S., an SB-1 visa might be the way for you.

Right now, reports seem to indicate consulate officers deciding SB-1 applications are not fully satisfied with just COVID as being the sole reason for a lengthy absence. Officers seem to be expecting more factors in your decision, like high-risk factors or another unexpected illness.

Can you try for both an SB-1 visa and direct entry?

You might be wondering if it’s possible to try for an SB-1 visa and if you fail, then try to directly re-enter the U.S. Or if you can apply for an SB-1 visa and if you are denied, then engage with an immigration attorney to apply for one again?

It is not recommended to try to re-enter the U.S. after being denied an SB-1 visa. You can try for an SB-1 visa at the consulate again, but the factors that led to the first denial are still considered in the consulate officer’s decision, so depending on the specific case, it may or may not be possible.

Ultimately, the strongest strategy for success regardless of your intended path is to engage with an immigration attorney before attempting any of the above. Employment based immigration attorneys, like the ones at Klasko Immigration, have decades of successful experience to guide you through this stressful process. You worked incredibly hard and waited very long to achieve permanent resident status to risk losing it now.

 

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.

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