Covid-19 and Green Card Holders Stuck Overseas Unable to Return to the U.S.

One of the many issues that have emerged during the Covid-19 crisis is the impact on green card holders who have been or will be outside the U.S. for more than six months and are unable to return. U.S. international travel restrictions and significant reductions in airline service to the U.S. have caused significant delays that can prevent permanent residents, as well as others traveling abroad, from returning to the U.S.

For permanent residents, the question arises whether they will have abandoned their permanent residence if they remain outside the U.S. for more than six months. While there is no fixed rule for how long an individual with a green card can remain outside the U.S., such travel should be “temporary” and a Customs & Border Protection (CBP) officer at a U.S. port-of-entry is permitted to presume that a green card holder outside the U.S. for more than six months has intended to abandon his or her lawful permanent residence. Green cards of those who remain outside the U.S. for more than 12 months face potential cancellation of their permanent residency.

A green card holder outside the U.S. for more than six months, but less than 12 months, however, can overcome the presumption of abandoning permanent residency by evidence that he or she had no intention to do so.

If you are questioned by a CBP officer at the U.S. port-of-entry about a stay outside the U.S. for more than six months, you can explain that you never intended to abandon your permanent residency as evidenced by your significant ties to the U.S. Moreover, CBP is obviously aware of the Covid-19 pandemic and the severe restrictions on returning to the U.S. This may be sufficient to convince the CBP officer that Covid-19 is a valid a reason that a green card holder could not return within six months.

Nevertheless, if you are questioned upon reentry to the U.S. after a long stay abroad, you should be prepared to explain the reasons for the extended absence and that you have neither abandoned, nor intended to abandon, your U.S. permanent residency. This can be shown by evidence such as:

• – Maintaining a residence in the U.S. through ownership of a home or an apartment rental;
• – Maintaining bank accounts, credit cards and investments in the U.S. to show financial ties;
• – Maintaining insurance in the U.S., such as home, health, and life insurance;
• – Filing U.S. tax returns;
• – Utility bills, a driver’s license, or car ownership in the   permanent resident’s name;
• – A return reservation or ticket for a date prior to the end of the six-month period;
• – Other evidence that your extended time abroad was based on circumstances beyond your control (e.g. medical issues, Covid-19, etc.)

Remaining outside the U.S. for more than 12 months

A greater problem can occur if a green card holder remains outside the U.S. for more than 12 months. In that case, the green card will be considered abandoned and invalid, and the permanent resident will generally be unable to reenter the U.S., with some exceptions:

• Reentry Permit. A green card holder with a valid reentry permit can present it at the U.S. port-of-entry as evidence that they did not abandon their permanent residency. Individuals who believe they will be abroad for more than one year must apply for a reentry permit while physically in the U.S. Reentry permits are initially valid for up to two years and are evidence that the green card holder did not intend to abandon permanent residency.
• SB-1 Returning Resident Visa. Green card holders without a reentry permit who have been outside the U.S. for more than one year can also apply for an SB-1 Returning Resident Visa at a U.S. Consulate abroad. The applicant must demonstrate that the extended presence abroad was unintentional and beyond their control, among other requirements.

Impact on U.S. Citizenship (Naturalization)

While a long absence, particularly one that is a result of a pandemic and outside of the individual’s control, may not result in an abandonment of the green card, the absence may nevertheless impact the timing of the green card holder’s application for naturalization to become a U.S. citizen.  To qualify for naturalization, a green card holder must have been a resident for either 3 or 5 years, during which time they must demonstrate that they have  meet two requirements related to travel. First, the physical presence requirement means that the individual must been physically present in the U.S. for at least 50% of the time during the 3/5 years time period. Second, the continuity of residence requirement means that they have avoided trips abroad that were 12+ months. In some cases, the USCIS may even find that trips abroad that are 6+ months also broke the continuity of residence.

In these case, the individual has to wait longer to become eligible for naturalization, depending on when they return to the U.S. Those who are eligible for naturalization based on the 3-year rule because they are married to a U.S. citizen must wait 2 years and 1 day after returning to the U.S. from a trip that broke the continuity of their residence. Those who are eligible for naturalization based on the 5-year rule must wait 4 years and 1 day after returning to the U.S. from a trip that broke the continuity of their residence.

Anyone with questions about how to avoid abandoning permanent residence and its impact on naturalization should contact an attorney at Minsky, McCormick & Hallagan.