Green card holders overstay outside U.S. due to covid-19

The COVID-19 global pandemic has resulted in many travel restrictions imposed by various countries and travel carriers worldwide. It has also affected the willingness of individuals to travel during the uncertain time of the pandemic.  People are concerned with the risk of traveling and want to avoid it. The quarantine requirements also play a major role in deterring people to travel.

All those reasons result in extended absences from the United States for U.S. lawful permanent residents (“LPR”).

This article provides a practical discussion of legal permanent residents (green card holders) who may be impacted by boarding restrictions resulting from the pandemic, as the longer time of absence may incur problems for green card holders to maintain their status as permanent residents.

Issues for Permanent Residents to Enter the U.S.

When a permanent resident seeks to enter the United States, if she has been absent for more than 6 months, she may be questioned to show whether she plans to continue to be a permanent resident.  If she has been absent for more than one year, there is a “rebuttable presumption” that LPR status has been abandoned.

Restrictions on Boarding Airlines

It is reported that certain airlines have been refusing to board permanent residents who have been absent for more than a year, even if the green card remains facially valid.

Airlines may also deny boarding of certain legal permanent residents who have expired I-551 cards. An unexpired green card is usually required for the admission of permanent residents.

On the other hand, if the green card was lost or stolen and LPR has been absent for less than one year, the LPR must apply for a replacement card by filing Form I-90. A USCIS receipt of filing form I-90 can serve as evidence of the extension of work and foreign travel authorization.

Boarding Foil

If an LPR has been outside the U.S. for less than one year and his green card is not expired;  or if he has been outside of the U.S. for less than two years and he has a valid Reentry Permit and he does not have his green card-present either because it was lost, stolen, or destroyed, then the LPR may be allowed to board on the plane by having a boarding foil.

A boarding foil informs the airline that the person is an LPR and is allowed to board a flight to the U.S. 

Applicants seeking a boarding foil may file a Form I-131A, Application for Travel Document (Carrier Documentation). The I-131A can be applied if the LPR meets the criterion.

How to Overcome Airline Boarding Restrictions on Permanent Residents

If there is an issue with airline boarding restrictions on a permanent resident, the following strategies can be explored:

1. Contacting Custom and Border Protection (CPB)

As long as the application fee for the boarding foil is paid, permanent residents can ask the airline to communicate with CBP’s Regional Carrier Liaison Group (“RCLG”) for assistance with their request to allow boarding. Note that the traveler cannot communicate directly with the RCLG.

When requesting the airline to communicate with the RCLG, it may be helpful to provide information that supports the position that the LPR has maintained U.S. residence.  The extended stay was because of reasons beyond his control and demonstrates the attempts he has tried to return to the U.S. residence. It is good to properly document the plans and efforts of the traveler to return to a United States address in the forms of:

1. canceled reservations;
2. medical records;
3. positive COVID tests;
4. tax documents;
5. current cell phone bills;
6. bank accounts; or
7. any other document that may help establish the applicant’s connection to the U.S. residence.

If the airline does not know how to contact the RCLG that serves its region, the CBP Port of Entry where the individual will be entering can be contacted to assist. If the RCLG’s guidance confirms the airline’s refusal to board, there are other alternatives including the LPR showing up at a US port of entry or applying for an SB-1 visa at a US consulate or embassy.

2. CBP Preclearance or Land Border: Waiver, Abandonment, or NTA

CBP has the discretion to waive a required entry document under INA 212(d)(4). This is done at a port of entry on Form I-193 Application for Waiver of Passport and/or Visa. This application must be made at a port of entry, which means that in the situation of an airline’s refusal to board, this strategy requires departing from a CBP preclearance inspection station or presenting the application for admission at a land border.

Regulation 8 CFR 211.1(b)(3) states:

“(3) If an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad believes that good cause exists for his or her failure to present an unexpired immigrant visa, permanent resident card, or reentry permit, the alien may file an application for a waiver of this requirement with the DHS officer with jurisdiction over the port of entry where the alien arrives. To apply for this waiver, the alien must file the designated form with the fee prescribed in 8 CFR 103.7(b)(1)… In the exercise of discretion, the DHS officer who has jurisdiction over the port of entry where the alien arrives may waive the alien’s lack of an immigrant visa, permanent resident card, or reentry permit and admit the alien as a returning resident if DHS is satisfied that the alien has established good cause for the alien’s failure to present an immigrant visa, permanent resident card, or reentry permit. …

Alternatively, CBP may issue a Notice to Appear (NTA) which alleges that the LPR has abandoned his or her permanent residence. It then leads to removal proceedings. Once in removal proceedings, the DHS has the burden to prove by clear and convincing evidence that the LPR has abandoned residence. Notably, CBP pre-inspection ports have stated generally that filing a Form I-90, Application to Replace Permanent Resident Card, is helpful and that the post can issue NTAs, but that referral to deferred inspection is more likely. Moreover, issuance of an NTA is unlikely unless the absence has been significantly longer than a year. Abandonment is difficult for DHS-ICE to prove where the length of time is not overly long, and also, LPR abandonment cases are not a prosecution priority.

3. Applying for Returning Resident Visa SB-1

An LPR returning to the U.S. after an absence exceeding one year without first securing a reentry permit can apply for an SB-1 Returning Resident visa by submitting Form DS-117, Application to Determine Returning Resident Status with supporting documentation. Consular operations are currently limited, making this strategy dependent on location and urgency of circumstances. The Foreign Affairs Manual describes the eligibility criteria for an SB-1 visa. The criteria 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.

Two consular officers must sign off on the approval of the Form DS-117, which makes it exceedingly difficult to obtain depending on circumstances and consular post. Consular officers have discretionary authority on approvals. Some consular officers consider any stay outside of the United States beyond two years to be grounds for an automatic denial, whereas at other posts, stays beyond four or five years can still obtain approvals.

Generally, consular officers want to see that the departure from the United States was sudden and abrupt and that the applicant has evidence of attempts at returning or maintaining ties to the United States. This can include the following:

1. A round trip ticket that had to be abruptly changed due to unforeseen circumstances;
2. Continued employment in the United States;
3. Filing U.S. tax returns;
4. Maintaining property ownership of a physical residence in the United States.

Consular officers will often consider the following as evidence of abandonment:

1. Extended or frequent absences from the United States even before the LPRs long departure;
2. A one-way ticket from the United States;
3. Disposition of property or business affiliations prior to departure;
4. Strong family/business/or property ownership or ties abroad;
5. Failure to file U.S. tax returns; and
6. Conduct while outside of the United States (such as employment, starting a family, running for office, or voting in foreign elections).

For country-specific instructions, you can visit the Department of State website. Some consular offices are reportedly being restrictive in their interpretation, and the existence of the COVID-19 pandemic alone may not suffice.

Conclusion:

The permanent resident should analyze the circumstances that prevented him or her from returning to the U.S., including considering the time spent abroad, the country-specific conditions, the efforts initially contemplated to return home, and the evidence at hand to ultimately demonstrate an unrelinquished U.S. domicile.  The totality of the circumstances makes a difference to the outcome.  Thus, the permanent resident should apply the strategy that best adapts to his or her circumstances.