Options and Strategies for Green Card Holders Stuck Outside of US Due to COVID-19

The Coronavirus/COVID-19 closures and travel disruptions have created many challenges in everyone’s life, including for many U.S. green card holders who are stuck outside of the U.S. for a considerable period of time which poses a significant risk to the maintenance of the lawful permanent resident status. This article discusses the issues and some options and strategies to protect the green card.

Reentry Permit Protects the Green Card

U.S. permanent residents (green card holders) who spend an extended period of time outside of the U.S. are likely (or 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 facing hostile questioning at the U.S. port of entry). A reentry permit’s default validity is 2 years from the date of issuance; however, green card holders who spend considerable total amount of time (48 months total time out of the previous 60 months) get only one-year term.

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 time of filing refers to the date USCIS receives the reentry permit application and start processing it – and normally this is the day FedEx delivers the application documents to USCIS. The process also requires biometrics (see below for possibilities of waiver) to be complete but the biometrics, if needed, can be done during a subsequent trip to the U.S.

COVID-19 and the Reentry Permit Filing Requirements

Unfortunately, USCIS has not modified or relaxed this rule as a result of COVID-19. Green card holders who need to obtain a first-time or a renewal of their reentry permit must be physically in the U.S. at the time of filing.

The requirement for a reentry permit to be in the U.S. is codified in the regulations:

An applicant for a reentry permit must file such application while in the United States and in status as a lawful permanent resident or conditional permanent resident.

8 CFR 223.2(b)(1)

With worldwide COVID-19 travel disruptions and bans, we understand that traveling to the U.S. is very challenging or, in some cases, even impossible. Unfortunately, at this time we are not aware of an effort by USCIS to amend the regulations (this change likely cannot be done by a simple policy memorandum) and allow the filing of reentry permits while being outside of the U.S.

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. CBP can simply allow the green card holder into the US or in some cases they can process an I-193 admission(I-193 Application for Waiver of Passport and/or Visa) by allowing the green card holder to pay a processing fee ($585 at this time).

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 USICS on this (which we do not expect at the time of this article), 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 three and five weeks with some limited options to having biometrics done on a walk-in basis.

Post-COVID-19, USCIS application support centers have been struggling with the backlog and there are significant delays in scheduling new appointments. USCIS does not officially allow walk-in biometrics although it may be able to do so in extremely limited emergency cases.

We have, however, seen USCIS reuse biometrics in certain reentry permit cases. We see this most often with reentry permit renewal applications. 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.

Applicants, especially for reentry permit renewals, who wish to stay in the U.S. for the filing and for the required biometrics have a more uncertain timeline because at this time we do not know for how long USCIS will continue reusing prior biometrics and, if so, what criteria they will use to do so. As a result, a green card holder who wishes to be in the U.S. at the time of filing and until they complete the biometrics (or know for certain that they have been waived) may need to remain in the U.S. for a period of a few months – possibly even until the reentry permit is approved.

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 and we also urge using the services of an attorney who can coordinate the process and assist from within the US should any issues with the process arise.

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.