The COVID-19 pandemic has significantly impacted all our lives in many ways including the ability to travel internationally. International travelers have faced closed borders across the globe and have had to seek special permissions to cross borders, which have been granted only in the most essential situations. While the United States and a handful of other countries are slowly starting to normalize, COVID-19 cases are on the rise in several other countries. With the continued goal of mitigating the spread of COVID-19, the United States continues to impose travel restrictions, even adding restrictions as new variants emerge and community transmissions surge in certain regions.
While the travel restrictions have significantly affected non-immigrant visa holders as well, this article will focus on the impact on U.S. Lawful Permanent Residents ("LPRs"). LPRs (also known as green cardholders) have the right to live permanently in the US and possess many of the same rights as United States citizens. With these benefits come many responsibilities and failing to meet the responsibilities can result in losing LPR status – which can be a devastating loss as many have waited for years or decades to become green cardholders. One key responsibility is maintaining permanent residence status while traveling outside of the United States. LPRs generally do not face any issues if their absence from the United States is for a temporary period. However, absences that range from several months to one year will most likely result in questioning by immigration inspectors regarding the LPR's intentions to abandon LPR status. After a year of COVID, for LPRs who have been abroad continuously for more than one year and are now seeking to return to the U.S., the presumption is that they have abandoned their green card, unless the LPR can show otherwise.
COVID-19 threw quite a wrench in travel plans and has left many LPRs stranded abroad, whether because of canceled flights, travel restrictions, illness, quarantine, or well-grounded fears of traveling. As a result, many LPRs have been forced to stay overseas for an extended period. This has presented a unique challenge when it comes to maintaining their LPR status. As immigration attorneys throughout the country will attest, concerned inquiries have been flowing in from LPRs stuck outside of the United States; with many LPRs waiting for more than a year to get guidance from U.S. immigration authorities whether exceptions will be made for LPRs returning after long absences resulting from COVID-19 related-issues. Thus far, there has been no blanket exception because of the pandemic, and it has fallen on immigration attorneys to help our clients navigate through this evolving process.
LPRs have reported varying experiences when attempting to re-enter the U.S., with some having no issues at all during boarding or at inspection at the U.S. border, even though they are returning after one year or more. Yet others were erroneously prohibited from boarding their flights even with the correct paperwork. As a result, for their re-entry to the United States, LPRs should prepare themselves with documents to support that they have had no intention to abandon their green cards to successfully return to the United States. Note: LPRs also have the option of applying for SB-1, a returning resident visa at the U.S. consulate; but given that consulates are working at reduced capacity, we will not be discussing that option in depth in this article.
How to prepare LPRs:
Demonstrate Ties to the United States
Greed cardholders should compile documents such as property ownership deed, a residential lease, car ownership documents, bank accounts, securities, other assets and investments, a driver's license, Social Security Card, credit cards, proof of health insurance, utility bills, phone records, confirmation of U.S. employment, tax filings, and financial support of relatives in the U.S.
Documenting Reason for Remaining Overseas
LPRs may have remained overseas for a variety of reasons. For those who were helping with aging and ill family members, they should get medical records that support their need to be present overseas to help family members. Those affected by flight cancellations can show canceled tickets as proof. LPRs with underlying conditions should get a certificate from their physician explaining the health concerns that made traveling during the epidemic particularly dangerous for them.
If LPRs expect to spend a few months outside of the United States, they should file for a re-entry permit (travel document) before their departure. As mentioned earlier, there is a presumption of abandonment of LPR status for absences from the United States for over a year. However, a re-entry permit establishes that the LPR does not intend to abandon status and allows the LPR to travel for up to two years. When an LPR re-enters on a re-entry permit, CBP generally does not conduct an inquiry as to whether the LPR has abandoned permanent residence.
An LPR must file for the re-entry permit while in the United States, so this option is not available to those stuck overseas. But the pandemic has been a learning lesson and for LPRs with family abroad or needing to oversee their businesses overseas, it could be beneficial to have a re-entry permit in the future.
Dealing with Airline Boarding Restrictions
Because of the pandemic, there has been confusion with certain airlines, and even LPRs with appropriate entry documents were not permitted to board their flights. The Customs and Border Patrol (CBP) issued guidance to airlines to mitigate these issues, but if the LPR faces issues at the airport, they should ask the airline to call the CBP Regional Carrier Liaison Group ("RCLG") for assistance with their request to allow boarding. The LPR should be prepared to arrive at least a few hours before their departure to allow the airline sufficient time to call the RCLG with information that shows the traveler has maintained a U.S. residence and that their extended stay outside the U.S. was for reasons outside their control.
LPRs Have Rights
It's important to remember that LPRs have rights. LPRs cannot just "lose" permanent resident status and must officially abandon it by filing a form (I-407), or the government has to make a formal decision. Further, officers at the border or port of entry do not have the power to revoke permanent resident status. If there is a disagreement with an officer at the border or port of entry, an LPR is entitled to a formal hearing with an immigration judge and may be represented by a lawyer at that hearing.
COVID-19 has exacerbated many systemic frailties across the globe. Issues with the US immigration system are nothing new or revolutionary. There are a few steps LPRs can take to maintain their status, mostly through avid and careful documentation. The big lesson learned for the future is that what's expected to be just a short trip abroad can unexpectedly turn into a year or more. Planning for the worst-case scenario, while hoping for the best, will be beneficial in the long run.
Originally Published by The Legal Intelligencer©.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.