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Is there any flexibility for Green Card holders stuck outside the United States due to Covid-19 (Coronavirus)? What are their options?
The short answer is no. There is no special flexibility due to Covid-19. One of the most common issues causing concern in the community is Green Card holders who have traveled outside the United States and have stayed abroad for over six months and, in some cases, over one year. So, what are their options? Let’s start with the worst-case scenario.
You Have Spent 1+ Year Abroad
First, you have remained outside the U.S. for more than one year, and you were unable to travel to the United States because of an inability to travel due to illness, lockdowns, fear of traveling, canceled flights, unduly hardships, or circumstances beyond your control, such as a global pandemic.
If you have spent more than a year outside the United States, there is a high likelihood that you have unintentionally abandoned your green card status (unless you’ve applied for a re-entry permit before your departure). If you have remained outside the United States for more than one year (or beyond the validity period of a re-entry permit), you may be eligible for returning Resident Immigrant visa at the U.S consulate abroad.
Unfortunately, the Returning Resident visa is not automatically granted. During the interview, you must prove to the consular officer the following:
You departed from the U.S. intending to return and have not abandoned this intention; and
You are returning to the United States from a temporary visit abroad and, if the stay abroad was prolonged, this was caused by reasons beyond your control and for which you were not responsible.
These (above) requirements must be met with supporting evidence, including the following: employment letter from U.S. company, any medical incapacitations, tax returns, and other social and economic ties to the United States. The consular officer will then assess the evidence and will decide on your case. If the officer approves your application, you need to fill the appropriate forms and pay the required visa fees before you’re able to travel back to the United States.
If, however, your evidence is deemed insufficient, and Returning Resident status is not granted, you have two primary options:
Either obtain a nonimmigration visa, such as B1/B2; or
Restart the Immigration Visa Petition again under a qualified basis. (I-130/I-140)
You Have Spent 6 Months to 12 Months Abroad
What will happen if you have an extended stay outside the United States between 6 months to 1 year. When a Green Card holder remains outside the U.S. for more than 180 days, but less than one year, you are considered to be seeking admission into the United States. This can be particularly problematic if the applicant has a criminal history and/or other unlawful presence issues. Also, when you arrive at the port of entry, you need to be ready to show documents that you’re admissible into the United States. Generally, because of the coronavirus pandemic, there is a high likelihood that you will be granted admission without any problems, assuming you do not have a pattern of prolonged trips outside the U.S or other criminal and/or inadmissible issues. However, each case is different and should be discussed with an immigration attorney for an accurate evaluation.
Less than 6 Months Abroad
Lastly, in this scenario, your stay was less than six months. Can it be problematic to enter the U.S., even though you are not seeking admission, as in the above example?
The answer is yes, but probably not. The CBP officers are always free to inquire about your intentions of your permanent residency, and whether you have an intention or have abandoned your residency in the U.S. This can generally be overcome by presenting documents such as evidence of employment in the United States, Tax Returns, and/or lease or mortgage documents, or family or other economic ties. Due to the coronavirus pandemic, the likelihood of this becoming an issue at the port of entry for returning Green Card holders is slim, especially in the midst of a pandemic.
Is there any other method of entering the U.S. after an extended visit abroad, if your green card is still valid and you do not want to apply as a Returning Resident abroad?
Yes. Although you have remained abroad for more than a year and you’re seeking admission into the United States, you may still be eligible to be admitted. If you decide to book a flight and you are now at the port of entry, there are a number of decisions that can be made while you are seeking admission.
The CBP can admit you with a warning;
The CBP can admit you and require you to fill Form I-193, Application for Waiver of Passport and/or Visa, and pay the appropriate fee ($585.00).
Seek withdrawal of admission by asking you to sign a Form I-407, Abandonment of Lawful Permanent Resident Status, which informs USCIS that you are voluntarily abandoning your status as a lawful permanent resident of the United States and updating your records to show you are no longer a Green Card holder.
The CBP can admit you on parole and issue a Notice to Appear (NTA) for removal hearings in front of an Immigration Judge; or
The CBP can admit you for that specific trip as visitors after you have signed the Form I-407.
As listed above, this option is far the riskiest since you will be required to present your case at the port of entry with no certainty of success. Here, the CBP officers have considerable discretion in their decision making, and the risks of you potentially having to fill out a Record of Abandonment of LPR status or being issued a Notice to Appear outweigh the possibility for a chance of admission. Thus, during the coronavirus pandemic, this option may still be utilized since most consulates around the world are closed and/or are operating at a limited capacity.
These are various options that are available for Green Card holders that are either stuck abroad or are coming close to losing their lawful residency. The best option is to consult with an immigration attorney and find the best available method to maintain lawful residency.
