If you are a U.S. lawful permanent resident (with a green card), you probably know that long periods spent outside the United States can result in hurdles to reentry. As described in How to Travel Outside the U.S. with a Green Card, U.S. government border officials will examine all returning residents to see whether, for any various reasons, they shouldn't be allowed back in; and extra questions get added after a long absence. Where does that leave you if you're stranded abroad due to medical matters, as was a problem for many at the height of the coronavirus (COVID-19) pandemic?
Whether because of canceled flights, illness, quarantine, or well-grounded fears of traveling, lengthy absences from the U.S. can be unavoidable. U.S. immigration law allows you to make various arguments in claiming reentry, depending partly on how long you've been away. We'll discuss the details in this article.
Six months (180 days) is a bit of a dividing line for U.S. residents who've been outside the country. Once you've been gone that long, the law regards you as an applicant seeking admission to the U.S. (under I.N.A. § 101(a)(13)(C)). Someone seeking admission is basically treated as a newcomer.
When you got your green card, for instance, you were an applicant for admission, and likely had to overcome all the grounds of inadmissibility concerning things like communicable diseases, your likelihood of becoming a public charge (reliant on need-based government assistance), and security matters (such as whether you had any record of committing crimes or acts of terrorism). Some of these you might have received a waiver for, such as past unlawful presence in the United States.
Upon return to the U.S., then, you'll need to be ready to show documentation to overcome any new inadmissibility issues that might have come up in your life, including such changes as a job loss or new health concern. Consult an attorney with any questions on this.
Another concern to be aware of is that even if you return to the U.S. just before 180 days is up, U.S. border officials are always free to decide that you meant to make your home elsewhere; that is, abandoned your U.S. residence. To prove otherwise, bring copies of documents showing that the U.S. is still your home base. Examples include copies of U.S. tax returns, a home lease or mortgage, evidence of employment, and so on. Also bring written evidence of your reasons for not traveling back to the U.S. earlier, such as doctor's statements or copies of notifications that your flights were canceled.
A U.S. border or port official who feels that you've abandoned your permanent residence isn't likely to send you back immediately, but rather let you into the U.S. with a notice that removal (deportation) proceedings are being initiated against you (called a Notice to Appear or NTA). You will have to appear in immigration court. There, you will have an opportunity to show the judge that you didn't intend to abandon your residence. If placed into removal proceedings, definitely hire an attorney.
Absences of over a year create additional problems (on top of the ones described above) for returning residents. Your green card (Form I-551) will be invalidated for purposes of travel documentation. It's a problem that can be overcome, but only by proving that you are returning from a "temporary visit."
That means a visit that was meant to end after certain things were accomplished, during which you maintained ties with the U.S. and always intended to resume permanent residency, except that you met with circumstances beyond your control. A pandemic could certainly qualify as a circumstance beyond one's control, but you still need to prove all the above things.
To help assure a smooth U.S. reentry, and cure the green card invalidity problem, your best bet might be to apply for a Returning Resident (SB-1) visa at your nearest U.S. consulate. Unfortunately, many U.S. consulates are behind on dealing with applications. On top of that, and not one but two consular officers need to sign off on this type of visa's approval.
To apply for the SB-1 visa, you'd use Form DS-117, Application to Determine Returning Resident Status, and include supporting documentation to show that you're returning to an unrelinquished U.S. residence, that your extended stay abroad was for reasons beyond your control (such as a serious illness), and that you were not responsible for the reasons for the stay abroad.
Another option, if the expiration date on your green card itself hasn't yet passed and you are currently healthy, is to travel to the U.S. and argue your case at the port of entry.
Unfortunately, you'd have to get past the airline or other carrier first, and some have been refusing to board lawful permanent residents who've been outside the U.S. for a year or more. If that happens, ask them to contact Customs and Border Protection (CBP)'s Regional Carrier Liaison Group (RCLG) for follow-up.
If you are allowed to board, or if you can go straight to a U.S. land border, you'll want to show documentation regarding your unrelinquished domicile and the reason for your unintended long absence to the Customs and Border Protection (CBP) officer whom you meet. You will probably be referred out of the main entry line, for deferred or secondary inspection.
The CBP officials can ultimately allow you in, but will likely ask you to complete Form I-193, Application for Waiver of Passport and/or Visa and pay the filing fee.
If that approach doesn't work, and you're at the U.S. border or port of entry, you can ask that an immigration judge hear your claim. Definitely get a lawyer's help with this; in fact, it would be best to consult with one before embarking on your travel to the United States.
Unfortunately, you cannot cure the problem by applying for a reentry permit. Those work only for people who submit the application to U.S. Citizenship and Immigration Services (USCIS) before departing the United States. For example, someone taking an overseas job and can predict their long absence might request a reentry permit.
Planning to apply for U.S. citizenship? Assuming you successfully make it back to the U.S., your long absence could create setbacks to your eligibility, perhaps necessitating that you wait longer to apply. That's because the naturalization eligibility requirements include some that focus on one's physical presence in the United States. See How Absences From the U.S. Affect Eligibility for U.S. Citizenship for more information.
Consulting with an attorney before you attempt a return trip to the United States can help in both evaluating your situation and strategizing what arguments to make to the U.S. Customs and Border Protection agents you meet, and what documents to show them. The attorney can also be available by phone in case you are detained at the U.S. port of entry.