Options and Strategies for Green Card Holders Currently Outside the United States Due to COVID-19

My office has been receiving quite a few queries regarding U.S. green card holders who are outside of the U.S. for a considerable period of time and, as a result, may face  a significant risk to keeping their green cards.  This article shall discuss the issues and some options and strategies to protect the green card from being  taken away.

The Rule

U.S. permanent residents (green card holders) who spend extended period of time outside of the U.S. should be aware that the reentry permit is a document, issued by U.S. Citizenship and Immigration Service (USCIS) allowing its holder to remain outside of the U.S. for an extended period of time without causing their green card to be considered abandoned or taken away  (or facing hostile questioning at the U.S. port of entry).

In terms of process, the reentry permit regulations require that the green card holder applicant be in the U.S. physically at the time of filing. The process also requires biometrics  to be completed but the biometrics, if needed, can be done during a subsequent trip to the U.S.

Unfortunately, USCIS has not modified or relaxed this rule as a result of COVID-19.

As a result, we urge green card holders who are outside of the U.S. to carefully consider their circumstances in order to avoid having their green card considered abandoned.

When A Green Card May Be Considered Abandoned?

A green card may be considered to be abandoned if its holder spend more than 365 days outside of the U.S. (or no reentry permit) or if its holder spends more than 365 days and overstays the validity of a reentry permit.

We should note that abandonment is determined based on a number of criteria, in addition to the length of absence outside of the U.S. For example, intent to return when leaving the U.S., taking a job abroad, maintaining access to a home in the U.S., payment of U.S. taxes (as a resident), maintenance of U.S. ties such as banks, memberships, social, etc.

When a green card holder has been abroad for more than 365 days (or overstays a reentry permit), there is a presumption of abandonment.

What Happens If A Green Card is Considered Abandoned?

A presumption of abandonment can be overcome in two ways.

Travel to U.S. and Showing Evidence of Intent When Departing U.S. and Maintenance of U.S. Ties. The green card holder can seek to be admitted into the U.S. using a valid and unexpired I-551 green card (even if being abroad for 365+ days) by being able to present evidence to a U.S. CBP border agent that they have maintained sufficient ties to the U.S. and never intended to abandon their U.S. residency. For example, if the green card holder intended to leave for a short period of time to visit a sick family member but was subsequently required to remain for a longer term due to need to provide care. In the COVID-19 context, a green card holder may be able to explain (and evidence) that intended to be abroad for a shorter period of time but due to COVID-19 their return to the U.S. has been delayed significantly. If the CBP border agents deems the reasons and evidence insufficient to overcome the presumption of abandonment, the green card can be paroled into the U.S. for the purpose of immigration court hearing in order to “defend” their green card.

Apply for an SB-1 Returning Resident Visa. As an alternative to traveling to the U.S. and making the case to a CBP officer at the U.S. port of entry, the green card holder can decide to submit an application with a U.S. Consulate to have their extended stay outside of the U.S. be considered temporary and be admitted into the U.S. as an SB-1 immigrant returning resident. In order to be successful, the green card holder will need to convince the consular officer that the reason they were unable to travel to the U.S. (or to obtain a reentry permit) was due to some extraordinary circumstances outside of your control. Obviously, each case’s circumstances are different, but successful cases normally include illness, extreme weather or political events, or similar factors (including COVID-19) which can be shown prevented the green card holder from traveling to the U.S. for an extended period of time. Inconvenience of traveling to the U.S. in our experience is not sufficient reason.

Reentry Permit Applications in the COVID-19 Era

Obviously, we recommend green card holders avoid any situations when their green cards may be considered abandoned. Absent any guidance by USCIS on this, green card holders who are outside of the U.S. should attempt to travel back to the U.S. before being outside of the U.S. for 365 days or before their reentry permit expires.

As noted above, the reentry permit process requires the applicant to be in the U.S. at the time of filing. In addition, the reentry permit process requires the applicant to submit to required biometrics – digital fingerprinting and digital photo. Prior to COVID-19, the time between filing of the reentry permit and the completion of the biometrics was between two to three  weeks with some limited options to having biometrics done on a walk-in basis.

We have, however, seen USCIS reuse biometrics in certain reentry permit cases, most often with renewals. There is no formal guidance by USCIS on when they are doing so, how long they will continue this practice and which cases exactly can have their prior biometrics reused. As a result, we caution reentry permit renewal applicants that even though their biometrics may be reused, they should still plan on either staying in the U.S. for a longer period of time in case they get called for biometrics OR having the flexibility of coming to the U.S. in order to complete the biometrics if needed.

How Long Do I Have to Stay in U.S. in Order to Apply for Reentry Permit?

This is a difficult question to answer because of the uncertainty with biometrics waiver or scheduling, as discussed above.

Our office can prepare an application in advance of a U.S. arrival and file on the applicant’s behalf as early as the day of their arrival or shortly thereafter which means that the applicant may need to be in the U.S. only for a few days for the reentry permit filing; although they may need to return and complete the required biometrics at a later time.

Conclusion

The reentry permit application process may be deceivingly straightforward, especially for green card holders who must depart the US relatively quickly or for green card holders who reside abroad. The COVID-19 travel disruptions have made this all much more complex. We urge careful and early planning for the various stages of the reentry permit application process.

For further information or questions you may have  please do not hesitate to contact The Law Offices of Michael H. Markovitch.