New Developments For Green Card Holders Still Abroad During COVID-19

Published date06 September 2021
Subject MatterImmigration, Coronavirus (COVID-19), General Immigration, Work Visas, Operational Impacts and Strategy
Law FirmKlasko
AuthorMr F. Oliver Yang

In 2020, Oxford English Dictionary chose an assortment of words to define the year including 'Blursday' and 'coronavirus.' At the same time, I wrote an article about the return options for green card holders (Lawful Permanent Residents, or LPRs) who have been abroad for more than a year. The issue has become exceedingly relevant as many LPRs, and in the year since we have learned a great deal about the developments and strategies surrounding this topic. If I were to assign words to this issue in the 'year of blursdays,'my top picks would be 'strategic' and 'hopeful.' In my opinion, an LPR can increase the chance of success in maintaining their green card by adapting to the new developments and adopting the right strategies.

Generally speaking, an LPR should be able to re-enter the United States after spending less than one year abroad, although an absence between 6 months and one year may result in more scrutiny at the port of entry. If the absence is more than a year, the LPR can apply for a returning resident (SB-1) visa at a US consulate or return to the United States directly and request a waiver at the border. In either scenario, the LPR needs to show that he or she has not abandoned the permanent resident status.

1. In most cases, one option is clearly better than the other

The SB-1 visa is a type of special immigrant visa provided under INA 101(a)(27)(A). 22 CFR 42.22 lists the specific requirements. Among them is the requirement that the protracted stay abroad 'was caused by reasons beyond the alien's control and for which the alien was not responsible.' On the other hand, 8 CFR 211.1(b)(3) provides that the border waiver (Form I-193) may be granted if the Custom and Border Protection (CBP) officer '[i]n the exercise of discretion ' is satisfied that the alien has established good cause' for his or her failure to present a valid SB-1 visa.

In practice, it usually takes a mountain of evidence to prove the 'beyond personal control' element for the SB-1 visa. For the border waiver option, this element is not present in the statute, and CBP officers are also allowed to exercise discretion when adjudicating the waiver. This means it is more likely that they can consider special circumstances, like a global pandemic. This suggests that the border waiver option should be the preferred route for most cases.

Favoring the border waiver is also consistent with what many returning LPRs have seen in the past year. Since the revival of international air travel...

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