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Opinion

Stuck outside the US for over a year

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

Are you a green card holder or lawful permanent resident (LPR) who left the US in late 2019 and the COVID-19 pandemic struck, and were not able to return to the US within one year? Maybe while you were gone, your green card expired. What can you do? How can you return to the US? What are the risks? And what can you expect? In this article, I will answer these questions.

Ordinarily, if an immigrant or LPR remains outside for more than a year, it is considered as though he or she abandoned their green card. (If they have a re-entry permit, they can stay outside the US for up to two years.) But many LPR’s traveled outside the US in late 2019, and then the COVID-19 pandemic struck. There were shutdowns, lockdowns, travel restrictions, flight cancellations and difficulties in booking return flights. LPRs were also afraid to fly out of fear of contracting COVID-19, because perhaps they had some underlying condition. Some may have even contracted COVID-19 while abroad or tested positive. Some wanted to wait for the vaccine and booster shots.

In the meantime, more than a year went by, and perhaps their green card expired. So, how can they get back to the US? What are their options?

In my opinion, there would be two basic options:

1. Apply at the US embassy or consulate for a returning resident or SB-1 visa; or

2. Board a plane and be prepared to demonstrate and document to the Customs and Border Protection (CBP) officers at the airport that you did not intend to abandon your green card.

(Of course another option is to be petitioned again, but it could take many years of waiting.)

SB-1 Visa. An immigrant can apply for a returning resident or SB-1 visa at the US embassy by proving, among other things, that their prolonged absence from the US was for reasons beyond their control. However, the embassies are becoming strict in granting these visas due to COVID-19, because daily flights have resumed for most countries, and it is difficult to even get an appointment for an SB-1 interview. I had one consultation where the LPR applied for an SB-1 visa, and it took more than a year before they could finally be scheduled for an interview at the embassy, of course due to reduced staffing because of COVID-19. But their application was ultimately refused. However, SB-1 is an option.

Board a flight. Another option is to board a flight to the US and make (or plead) your case with the CBP officers at the airport, rather than to a consul. I know some airlines were refusing to board green card holders if they were outside the US for a long time, especially if the green card had expired. However, this is wrong, and the airlines should not be doing that.

In fact, CBP put out a reminder on the requirements for boarding LPRs. As for green card holders with unexpired valid permanent resident cards, CBP notes that “passengers with valid, unexpired permanent resident card… may be boarded without any additional documentation.”

As for LPRs with expired permanent resident cards with ten-year validity, CBP reminds airlines that “LPRs with expired I-551 may be boarded without penalty, provided the card was issued with a 10-year expiration date.”

So you can see, LPRs with a green card should be allowed to board a plane, even if the green card has expired, and airlines are warned that they “should not be determining admissibility of a travel outside the parameters of the document requirements.”

While I cannot guarantee results, it has been my experience (and the experience of other immigration attorneys) that it is best to deal with CBP at the airports on the issue of overstaying versus applying for an SB-1 visa, as CBP officers are far more flexible and understanding than the consuls at the embassy.

Of course you should be prepared to be sent to secondary, which is not custody or detention, but just a more in-depth questioning of a person than at the primary inspection or the immigration booths. Usually, there are more senior inspectors in secondary.

If you are going to pursue this option or even the SB-1, I would strongly suggest that you first consult with an attorney, who can evaluate your case, even via phone. An attorney can evaluate your case, assist in gathering documents and evidence and packaging your presentation, demonstrating you never intended to abandon your lawful permanent resident status, and your efforts to try to get back to the US and how the COVID-19 pandemic and delays prevented that.

If you are a green card holder, CBP cannot send you back to your home country by what we call “airport to airport.” Nor can they force you to sign forms to give up your green card, such as a Form I-407. Only an immigration judge can order that a person’s green card be taken away due to abandonment, not a CBP officer. By consulting with an attorney ahead of time, before you fly back to the US, you can be properly briefed, so you know what to expect and how best to truthfully answer the questions.

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