How U.S. Permanent Residents Can Avoid Problems On Return
Recently, as the U.S. has been emerging from the COVID-19 era, many U.S. permanent residents attempting to return to the U.S. after absences of over a year have been navigating a host of legal challenges. Driven abroad by fears of the virus or other related, emergent obligations such as caregiving brought on by the pandemic situation, these individuals are finding – some, much to their surprise – that they are unable to return to their homes and families in the U.S.. The law is clear on this topic, however, and PRs departing the U.S. must carefully do their due diligence before leaving to avoid problems on return.
What the Law says About Maintaining Status as a Permanent Resident
Once an individual becomes a lawful permanent resident (Green Card holder), they either maintain permanent resident status until they apply for and complete the naturalization process or lose/abandon their status.[1] One of the ways in which status can be lost is through extended travel : though a lawful permanent resident (LPR) normally may travel outside the United States and return, an individual’s Permanent Resident Card (green card) becomes technically invalid for reentry into the United States if they are absent from the United States for 1 year or more.[2] Additionally, U.S. permanent residence may be considered as abandoned for absences shorter than 1 year if the individual takes up residence in another country.[3]
What Individuals Must do Before Leaving to Maintain Status
Though there are no guarantees, obtaining a re-entry permit from USCIS before departure o from the United States may help demonstrate that a given absence was intended to be temporary in nature. Otherwise, the individual may be considered to have abandoned their permanent resident status and may be referred to appear before an immigration judge to decide on this matter. To obtain a reentry permit, Form I-131, Application for Travel Document, must be filed well in advance of the intended trip.[4]
A reentry permit establishes that the applicant did not intend to abandon status, and it allows for application for admission to the United States after traveling abroad for up to 2 years without having to obtain a returning resident visa. Reentry permits are normally valid for 2 years from the date of issuance.[5]
When the Individual Has Remained Abroad for More than One Year or Beyond the Re-Entry Permit’s Validity Period
A permanent resident who has remained abroad for more than one year, or beyond the validity period of a Re-entry Permit, will need a returning resident visa (also called a special immigrant visa or SB-1 visa) to enter the United States and resume permanent residence.[6]
Applications can be made at the nearest U.S. Embassy or Consulate. The applicant must prove that they 1) had the status of a lawful permanent resident at the time of departure from the United States; 2) departed from the United States with the intention of returning and have not abandoned this intention; and 3) are returning to the United States from a temporary visit abroad (if the stay abroad was protracted, they must demonstrate that this was caused by reasons beyond their control and for which their were not responsible).[7]
In addition to establishing eligibility for an immigrant visa, an SB-1 applicant must also have a medical examination and pay both visa processing fees and medical fees. Finally, as part of the visa application process, an interview at a U.S. Embassy or Consulate is also required.[8]
Discussion
The COVID-19 pandemic has created an unprecedented situation for many U.S. permanent residents. Though temporary, blanket policy measures by the Biden administration to waive continuous residence requirements throughout the pandemic period could have avoided the perils of many PRs currently struggling to return to the U.S., such measures do not appear to be forthcoming. As such, given the potentially onerous requirements for return after long periods of travel, U.S. permanent residents would be well-poised to plan carefully before departing the U.S. for extended periods.
