Returning Resident Visas & Other Strategies for Green Card Holders with Protracted Absences from the U.S.
A U.S. permanent resident (LPR) who has traveled outside the U.S. for a period of one year without first securing a reentry permit from USCIS (or whose reentry permit is expired) is inadmissible pursuant to INA §212(a)(7)(A) unless he first receives either a returning resident (SB) visa from the Department of State or a Form I-193 waiver from U.S. Customs and Border Protection pursuant to INA § 212(d)(4) (or is ordered readmitted by an Immigration Judge). This issue has taken on increased importance since the onset of the COVID-19 pandemic in early 2020 as increasing numbers of LPRs have been “stuck” abroad for extended periods due to border closures, flight cancellations, illness, and related reasons that have prevented their timely return to the U.S.
Which, if either, of the above options should be pursued depends on a variety of factors, including: 1) How long the foreign national has been outside the U.S.; 2) The specific reason for the extended foreign travel; 3) The specific documentation available to establish eligibility, including the person’s permanent ties to the U.S. during the extended travel; 4) What the foreign national has been doing abroad during the extended travel; 5) Whether he filed U.S. income tax returns for the years in question and, if so, whether he filed as a U.S. resident or non-resident; 6) The specific consular post’s policies on returning resident visas; 7) Varying CBP office policies on Form I-193 waiver requests; 8) Whether the client is willing to litigate his eligibility for continued LPR status before an Immigration Judge; and 9) Whether the foreign national has the ability to reapply for an immigrant visa within a reasonably short time based on a qualifying relative petition or job offer.
While the criteria for returning resident visas are set forth at 9 FAM 502.7-2, each consular post sets forth its own standard operating procedures and policies towards these applications vary widely from one post to another. In general, the applicant is required to file Form DS-117 and demonstrate that he: A) Was an LPR at the time of departure from the U.S.; B) At the time of departure, he had the intention of returning to the U.S. to resume LPR status within a reasonably short time; C) While residing abroad, he did not abandon that intention; and D) Is returning from a temporary residence abroad and, if the stay was protracted, this was caused by reasons beyond his control. The consular officer will examine various factors, including:
- How long was the foreign national outside the U.S. and why? The longer the trip, the more likely the application may be problematic. The more compelling the reason for the absence (especially if there are documented medical or other compelling personal reasons), the better.
- Prior to that trip (and since gaining LPR status), what was his foreign travel history?
- How much property did the foreign national leave in the U.S. when he departed and has he disposed of that property?
- What did the foreign do while abroad? If the person spent the time carrying for a seriously ill relative, that is preferable to someone who was employed.
- Did he file U.S. tax returns during the absence and, if so, did he file as a U.S. resident or non-resident? The filing of a tax return as a non-resident creates a rebuttable presumption that the foreign national intended to abandon LPR status (and it may be necessary to immediately advise the client to amend past tax filings in efforts to cure the issue).
Some consular posts are extremely strict toward returning resident applications, while others are more lenient. As such, it is advisable for the practitioner to make every effort to verify specific post policy prior to submitting the application, especially since there is a risk the consular officer may seize an unsuccessful applicant’s permanent resident card (or pressure him to sign a Form I-407 abandonment of LPR status), making other solutions (such as a Form I-193 application with CBP) more difficult to accomplish.
The author generally prefers filing a I-193 application with CPB over applying for a returning resident visa, and for several different reasons. First, in most cases it is easier for the attorney to discuss the merits of a specific case in advance with the local CBP Duty Officer or Port Director than with consular officials. Second, in many cases, especially those that result in a deferred inspection with CBP, it is possible for the attorney to be present with the client at the time of application. Third, in the event the Form I-193 application with CBP is denied, the applicant has the right to demand an Immigration Court hearing (and will be paroled into the U.S. for the removal hearing) and the burden of proof is on the government to prove abandonment of residence, whereas the burden of proof is entirely on the applicant for a returning resident visa. In such cases, the foreign national will generally be required to show (based on the various factors listed above) that at the time of departure from the U.S. and throughout the overseas travel period, there was a fixed intended termination date for the overseas visit set by an event that was capable of taking place within a relatively short period of time. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988).
As noted above, many LPRs have been required to remain abroad for extended periods of time during the COVID-19 pandemic and, generally, the author believes CBP has been understanding of the situation and “generous” to persons stranded abroad for legitimate health-related reasons. At the same time, LPRs should assume CBP will become less tolerant of such reasons as COVID conditions improve worldwide. While current CDC guidelines specifically exempt LPRs from needing to show proof of full COVID-19 vaccination to reenter the U.S., as of December 6, 2021 all air passengers 2 years of age and older destined for the U.S. (including U.S. citizens and LPRs) are required to show evidence of either a negative COVID-19 viral test taken no more than 24 hours before travel or, alternatively, proof of recovery from COVID-19 (a positive COVID-19 viral test on a sample taken no more than 90 days before flying to the U.S. and a letter from a licensed healthcare provider or public health official clearing the individual for travel). As such, if factors such as the unavailability of COVID-19 testing and/or the required medical documentation in the traveler’s home country have impacted the person’s timely return to the U.S. to resume LPR status, full documentation should be provided to support either the SB or I-193 application.