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To say that the COVID pandemic has complicated a lot of things in the world could be the understatement of the year. Lockdowns, travel restrictions, and stay-at-home orders have affected us all. However, those with green cards who were traveling during the outbreak have been particularly affected. Travel bans may have left this segment of our society stranded in a foreign country without the ability to make it back to the U.S. This unfortunate situation will not only affect their lives, but it could also affect the status of their green card as well.
Rules When Staying Outside the U.S. with Green Card
According to USCIS guidelines, your green card is considered abandoned if you are outside of the United States for more than 365 days. Put simply, your green card is technically invalid as a way of re-entering the U.S. if you have been outside of the country for more than a year. The only exception to this is U.S. Government personnel (including their minor children and spouses) who are on an official overseas assignment may have 16 months outside of the country without losing their residence status.
Filing for a Re-entry Permit
A re-entry permit is basically prior approval from USCIS to stay out of the county for more than a year (usually up to 24 months). USCIS Rule 8 CFR 223.2(b)(1) says that you need to seek this re-entry permit before you leave the country because your green card needs to be physically present in the U.S. when applying.
To file for re-entry, you are going to have to fill out Form I-131, Application for Travel Document, along with the following:
Necessary filing fees;
A photo of the green card holder;
A copy of your green card;
A copy of the biographic page of your passport and the page that indicates initial admission as a permanent resident;
A copy of your alien registration receipt card; and
Any other necessary documentation or evidence that you are a permanent resident.
However, a lot of governmental paperwork has gotten backed up due to the pandemic. Therefore, it is in your best interest to file your Form I-131 and supporting documentation as far in advance of leaving the country as possible. Once USCIS receives your documentation, you will receive a receipt notice, a notice of your Biometric appointment, and a notice of where and when to appear for an interview.
Applying for SB-1 Visas
If you did not apply for re-entry through the I-131 application before you left the country, then your other option is to apply for the SB-1 Returning Resident Visa. This visa must be filed at your local U.S. consulate. Now, you are going to have to prove to the consular officer that there were circumstances beyond your control that prevented you from re-entering the U.S. within the one-year period.
Normally, proving “elements beyond your control” is quite a task and would require a mountain of paperwork. However, because of the COVID travel bans, this requirement has become much easier.
The downside of applying for the SB-1 Visa is the fact that, because of the pandemic, many consulates are completely backed up. So not only is it more likely for your application to be denied for the slightest infraction, but you are also going to be waiting for some time for an interview. The combination of these elements is going to add more days to your time outside of the United States.
Border Waivers
One additional option provided by 8 CFR 211.1(b)(3) is a border waiver. This may be granted by a Custom and Border Protection (CBP) officer using Form-I-193 if you can establish good cause for not having an SB-1 Visa. The border waiver does not require the “beyond your control” element like you will find with the SB-1 Visa, so it is up to the CBP officer’s discretion.
According to reports from green card holders in this situation, there seems to be evidence that the border waiver is the preferred method. While many have reported denials of their SB-1 Visa application, there are numerous reports of being granted border waivers. Apparently, most CBP officers are empathetic because of the pandemic when approving waivers at the border, and some have reported being informally granted border waivers without the need to fill out Form I-193.
One key to success with the border waiver option is communication with the airline. When the airlines cranked back up after the travel bans, many were denying border waivers because of the one-year rule. However, in March 2021, the Carrier Liaison Program published guidance for the CBP officers that any lawful permanent resident (LPR) with a valid, unexpired green card should be allowed to board. This guideline has mostly cleared up this issue for border waiver seekers. We suggest that you communicate with the airline and determine their boarding policy before you make reservations. And on the day of your flight, arrive early and bring a copy of CBP guidelines, just in case.
We Are Here for You!
The Covid-19 pandemic has had negative consequences for billions of people around the world. And it has certainly complicated the lives of US legal permanent residents who were unfortunate enough to be out of the country when the pandemic hit. Attempting to become a US citizen is complex enough to start with. But pandemic lockdowns and travel bans have exponentially added to the complexity of this process for those stranded outside of the US as the pandemic raged.
We at The Jarbath Peña Law Group are your immigration partners. We are here to help you sort through your options, regardless of the complexity of your situation. It is our privilege and honor to use our knowledge and experience to help you preserve the immigration status you’ve worked so hard to secure and maintain. So contact us today! You can contact us at 305-615-1005 or through our online contact form, and set up your free initial consultation. We look forward to serving you!
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