Since the Covid Pandemic began last year, we have been bombarded with inquiries from lawful permanent residents (LPRs) who expressed unwillingness to return to the US and asked about potential consequences of staying outside the US beyond 6 months.
An LPR Lives in the U.S. Permanently
Before we begin the analysis, it’s important to set the expectations first of what it means to be an LPR. When you apply for a green card, you are seeking to stay in the US on a permanent basis. You don’t seek LPR status out of convenience or you want to travel easily to the US whenever you feel like it. Many have this false impression and as such do not take seriously the importance of making US their home. From DHS’s perspective, if you are spending most of the time overseas, then why do you even need to be an LPR. Hence, potential problems may arise whenever an LPR decides to delay his/her return to the US.
US has not banned entries from LPRs
Even at the height of the Covid Pandemic, the U.S. has not banned LPRs from returning home. We often hear about “travel restrictions” as the main reason for their extended absence. Yes, there may be restrictions at the departing country but US has kept its doors open for returning LPRs. Fear of catching covid is also a common concern. But currently, there is no official policy that would forgive your prolonged stay outside of the US due to your worry over Covid.
Depending on how long you’ve been outside of U.S., you may face the following outcomes when you return to the U.S. which is in part subject to a CBP officer’s discretion.
Less than 6 months
If you’ve stayed overseas for less than 6 months, you should be allowed in without issue especially if it’s the very first time. Sometimes, you may be given a warning if your trip lasted very close to the 6 months threshold. You may also get a warning If you have a consistent record of taking multiple trips each of which lasts just under 6 months. If those frequent trips are substantial in frequency and length, you may also face outcomes in the next heading.
Warnings may be recorded as part of your entry file. If you do get a warning, consider yourself lucky, do not repeat the offense, and file a Re-entry permit (see more below) if you plan on taking extended trips in the future.
More than 6 months
If you return to the US after a stay that exceeds 6 months, you will likely be directed to secondary inspection. This is the part where things get serious. An officer will take you to a room and ask you a bunch of questions sometimes lasting hours. The purpose here is to assess whether you are a “returning resident”. If so, you should be processed quickly and admitted as an LPR. If not, that means an officer has determined that you may have abandoned your LPR status due to your prolonged stay overseas.
Note that only an immigration judge can decide whether or not you have abandoned or relinquished your LPR status. If you are put in proceedings due to alleged abandonment, the officer will take away your green card, give you temporary evidence of LPR status via a stamp on your passport, and let you be on your way. Sometimes, an officer may force you to sign form I-407 to voluntarily abandon your LPR status. You should refuse and request that you want to exercise your right to appear in front of a judge.
Discretion and Luck
Here, we want to emphasize that discretion and luck also play a role in these situations. For example, anecdotally, we are hearing reports recently that many have been allowed in without issue despite extended stays abroad lasting well over 6 months sometimes more than a year. We have also heard from clients that they’ve been given stern warnings after interrogation but ultimately were admitted as LPRs. It’s possible that officers may be exercising positive discretion per some internal memo in light of the ongoing pandemic.
We are often shocked by the ease of passing through CBP for those who we thought may experience difficulty at the time of their return. Despite having prepared a binder worth of supporting documents, the officer did not care for them and simply asked basic questions. In cases where we represent clients who have been put in proceedings and facing charges of abandonment, we are often amazed by the record of prior successful entries sometimes in the dozens, after taking extended trips lasting close to or exceeding 6 months.
As such, not every trip lasting more than 6 months will lead to a negative finding. But the safest approach is to be prepared and not put yourself at the mercy of an officer’s discretion.
Re-entry permit (I-131)
If you do not wish to take risks, the best approach is to file and obtain a Re-entry permit prior to departing the U.S. Re-entry permit may be approved for a maximum period of 2 years. With a Re-entry permit, you may stay overseas up to the permit’s expiration date. When you return with a re-entry permit in hand, you should not encounter any questions regarding abandonment.
You must be present in the U.S. when filing I-131. You must also be present to complete biometrics. Generally, once biometrics are completed (within 4 to 5 months), you may depart the U.S. You may ask a relative or friend to mail the approved re-entry permit to you after it is approved which may take more than 6 months. If you must leave upon filing I-131, be prepared to return for biometrics. Do not file I-131 while you are not physically inside the U.S. Doing so will lead to a denial.
The law currently does not restrict how many times you can renew your re-entry permit. USCIS regularly gives full 2-year validity periods to the first two renewals. Subsequent re-entry permits may still be approved but USCIS may limit their validities to just one year. But even with a one-year re-entry permit, it will be longer than 6 months and you won’t face any scrutiny when you return.
SB-1 (for stays exceedings one year)
If you have been overseas for more than one year without securing a re-entry permit, you should apply for an SB-1 Returning Resident visa by submitting Form DS-117, Application to Determine Returning Resident Status with supporting documentation. Eligibility criteria for an SB-1 visa are that the LPR is returning to his/her unrelinquished U.S. residence, the extended stay abroad was for reasons beyond his/her control, and that s/he was not responsible for the reasons for the stay abroad. Note that the bar for granting SB-1 is very high. It is really for extreme circumstances beyond anyone’s control.
Always bring supporting documents
Lastly, LPRs should get into the habit of packing supporting documents like they pack their clothes whenever they go on an extended trip. These documents not only help overcome any adverse findings regarding abandonment, but they also help motivate an officer to exercise positive discretion in your favor. These documents reduce the time you spend in secondary inspection and gives the officer some reasons to find you to be a “returning resident”.
Documents may include: most recent 3 years of tax return (very easy to print tax transcripts online), deed/lease agreement, immediate relatives who are present in the U.S., pay stubs, a letter from an employer acknowledging extended absence, the purpose for taking a long trip (taking care of a sick relative, liquidate assets abroad, for business/research), etc. The purpose of these documents is to show that your permanent home is in the united states and that you have not abandoned your home.