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The Struggle to Keep a Green Card During COVID-19

September 15, 2020

With the COVID-19 pandemic ongoing now for close to six months, U.S. permanent residents and conditional permanent residents caught outside the United States due to COVID-19 are experiencing significant challenges in making return travel plans home to the United States. While U.S. permanent residents are exempt from all travel bans and executive orders issued by the Administration, the fear of travel is real, and running up against extended absences from the United States can interrupt eligibility for U.S. citizenship as well as the ability to retain a permanent resident card ("green card").

Lawful permanent residents who find themselves outside the United States for more than one year continuously or those staying outside the United States beyond the expiration date of a re-entry permit may require a returning resident visa to enter the United States with the goal of resuming permanent residence.

A returning resident visa is generally issued by a consular official outside the United States to lawful permanent residents who find themselves unable to return to the country due to illness, pregnancy or government restrictions on outbound flights such as those we have seen in the current COVID-19 crisis. While officers at ports of entry might be willing to waive in a long-term permanent resident who has a compelling reason for a prolonged absence from the United States, one cannot always rely on the sympathy of a Customs and Border Protection officer at an airport or other U.S. port of entry. Making a case may not result in a favorable outcome. It is important to remember that while some U.S. Customs and Border Protection officers may threaten to confiscate a green card at the airport/point of entry, one is always entitled to their day in court and can demand a hearing before an immigration judge.

A returning resident visa is processed through a U.S consulate abroad and given the frequent cancellations of appointments, opening and closing of consular posts due to specific COVID-19-related country conditions, it would be advisable for lawful permanent residents to review their specific situations, ability to return to the United States and whether they have ties that would result in a consular official agreeing with them that they in fact qualify for the returning resident visa.

Documentation that would be included in such a request for a returning resident visa might include U.S. income tax returns and proof of filing as a resident for tax purposes, property ownership documentation and bank accounts, evidence of a job in the United States, family ties, etc. Such documentation would prove to the satisfaction of a consul that the true intent of the permanent resident in departing the United States was temporary and his or her ability to return to the United States was beyond their control.

It would be advisable for lawful permanent residents and conditional permanent residents to return to the United States if at all possible in order to rebut any presumption that they might have abandoned their residence, keeping in mind that safety is the ultimate concern. It is also wise to seek formal immigration advice and counsel to assure that a green card isn't confiscated at a U.S. port of entry for an unsuspecting applicant applying for return admission to the United States.

Attorney Advertising. The information contained in this Legal Alert provides a general summary of the topics covered and is not intended to be and should not be relied upon as legal advice. You should consult with your legal counsel for advice and before making legal, business or other decisions.

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