First, a note on terminology: A lawful permanent resident (LPR) is the same thing as a permanent resident and as a green card holder. All of these terms mean the same thing. In addition, the information below applies to both LPRs and conditional residents as well.
The novel coronavirus has thrown the entire world for a loop, to say the least. US permanent residents who have left the US and are stranded outside the US may be wondering how their permanent residence status will be impacted if they are not able to return to the US soon. This is a valid concern, as extended absences outside the US may cause a person to lose their permanent residence status or may make it more difficult for the green card holder to re-enter the US.
Permanent residents outside the US:
A permanent resident who remains outside the US for more than one year has abandoned her permanent residence, and the green card is invalidated automatically (8 CFR 211.1(a)(2)).
However, many green card holders mistakenly take this to mean that if they just re-enter the US at least once a year, that is enough to prevent them from losing their LPR status. That is simply not true. Case law also holds that a person’s US residence may be deemed abandoned if they live overseas and simply visit the US from time to time.
If an LPR is going for a temporary visit abroad, then their residency should not be considered abandoned (8 USC 1101(a)(27)(A)). A temporary visit would be one that is for a set period of time, or if the visit will end when a specific event happens, like caring for an ill relative. The Department of Homeland Security will also look at your connections to both the US and the country you were visiting during the period in question. That is, in the US: did you have a job (even if you took a leave of absence), did you have active bank accounts, did you own property, did you have family here, etc. They will also look at similar ties in the overseas country.
The six month rule: many green card holders ask me what will happen if they are outside the US for more than six months at a time. This question likely stems from the requirement for naturalization in the US that a person continuously reside in the US for the five year (or three year, if married to a US citizen) period before applying for naturalization. Continuous residence is considered to be broken if a person is outside the US for more than 6 months (though there are exceptions). The continuous residence requirement is separate from the physical residence requirement, which requires that the applicant be physically present in the US for at least half of the previous five years (or three years) prior to filing. However, the six month rule does not apply specifically to maintaining residence.
What if a green card holder is stuck overseas because of the novel coronavirus?
If a permanent resident knows that he will be overseas for an extended period of time before he leaves the US, he can apply for a re-entry permit. The re-entry permit can be approved for up to two years at a time, and once approved, allows a permanent resident to re-enter the US even though they have been outside the US for an extended period of time. However, the green card holder must be physically present in the US to file for the re-entry permit, and must have the fingerprinting done in the US as well. This is not a viable solution for someone inadvertently stuck outside the US during a pandemic.
In this Covid-19 crisis, permanent residents should try to return to the US as soon as they are able to and it’s safe. However, if they cannot return for an extended period of time (but for less than one year), one would hope that CBP would be understanding in re-admitting the permanent residents when it is safe for them to re-enter. It would be prudent to carry documentation of your ties to the US, and be ready to explain that you were not able to re-enter because of Covid-19.
Once a permanent resident has been outside the US for more than one year, as outlined above, his green card is invalidated. In that case, the green card holder may want to consider applying for a returning resident visa (SB-1) before returning to the US. Of course the green card holder should seek qualified legal advice before taking any action.
What happens if I try to re-enter the US after being outside for a long time, but less than a year?
When a permanent resident tries to re-enter the US after an extended absence, one of several things could happen:
- They could re-enter with no issue;
- CBP (officers at the port of entry) could put them in secondary inspection and ask lots of questions but still admit them into the US;
- CBP officer could tell them that while they are here they need to file for a re-entry permit (but allow them to enter this time);
- CBP officer could allow them to enter, but then the green card holder could receive a notice to appear (NTA) in immigration court
These are challenging times. We are here to help our clients, existing and new, navigate their options and make the best decisions possible for these uncertain times.
We are here to help you navigate the immigration maze with peace of mind and confidence. Contact Sumner Immigration Law to set a consultation to create your strategy today! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.
