COVID-19 Restrictions Impact Lawful Permanent Residents (Green Card holders)
The lengthy COVID-19 pandemic has created numerous difficulties for immigrant and nonimmigrant visa holders, especially when it comes to travel. Travel issues, particularly related to the U.S.-imposed travel restrictions, has been particularly impactful to Lawful Permanent Residents (LPRs).
Otherwise known as Green Card holders, LPRs generally may travel abroad without having to apply for admission to the United States each time they return from international travel. However, LPRs who have been stuck abroad due to U.S. travel restrictions imposed upon 33 countries, or who have had to be absent from the U.S. for a lengthy period of time to care for sick family members, may be classified as having “abandoned” their LPR status.
Lawful Permanent Residents and Travelling Abroad
LPRs who travel abroad for short periods of time and then return to the United States are generally not considered to be “seeking admission” at a U.S. port of entry because their LPR status deems them as already admitted. However, LPRs may be subject to the grounds of inadmissibility if any one of six situations apply to a LPR arriving at a U.S. port of entry following a trip abroad. The six grounds for inadmissibility apply when the LPR has:
- Abandoned or relinquished permanent resident status;
- Been absent from the United States for a continuous period of more than 180 days;
- Engaged in illegal activity after departing the United States;
- Left the United States while under removal or extradition proceedings;
- Committed an offense identified in the Immigration and Nationality Act § 212(a)(2);
- Attempted to enter the U.S. without inspection.
If any one of these six situations apply to a LPR seeking to enter the United States, the LPR will be treated the same as other noncitizens seeking admission, and will be considered “arriving aliens.” When one of these six situations apply to a LPR, he or she must prove that they do not come within one of the above six grounds.
How COVID-19 has Impacted LPR Admissibility
LPRs who have travelled outside the United States just prior to the COVID-19 pandemic, or during it, may have found themselves stuck in their home country or another country where travel restrictions are imposed. Or, some LPRs may have had to travel abroad for personal or professional reasons without intending to abandon their LPR status, but have nonetheless been forced to stay abroad for a prolonged period, despite their intention to eventually return to the United States.
Under applicable immigration law, LPRs who have been stuck abroad during the COVID-19 pandemic may lose their status after six months spent abroad. On the other hand, a LPR may be found to have abandoned their LPR status even though they have been absent fewer than 6 months if it is determined the LPR’s travel abroad was not intended to be temporary.
Absences of 180 Days (or 6 months)
Generally, absences of greater than 6 months but less than one year are not considered by the United States Citizenship and Immigration Services (USCIS) to be abandonment of LPR status. Abandonment may be found from absences of less than one year if the USCIS believes the LPR did not intend to make the United States his or her permanent residence. For LPRs who have been absent from the United States due to the COVID-19 pandemic, especially for reasons such as travel bans or other health and safety restrictions, are not likely to be deemed to have abandoned their status. However, the USCIS may find a LPR has abandoned their status, regardless of the length of the absence, if it is determined the LPR did not intend to travel abroad temporarily.
Abandoned or Relinquished LPR Status
The USCIS may find that a LPR has abandoned his or her status even if they were absent from the U.S. for less than 6 months. Abandonment can be found, regardless of the length of the absence, if the USCIS finds that the trip abroad was not intended to be temporary.
When making a determination of abandonment, the USCIS will look at various criteria, including whether:
- the LPRs intention was to visit abroad only temporarily;
- the LPR has maintained U.S. family, community ties, and employment were maintained by the LPR;
- the LPR maintained a U.S. mailing address, U.S. bank accounts, and a valid driver’s licence;
- the LPR owns property in the U.S. or runs a business in the U.S.; and
- the LPR filed U.S. income taxes as a resident or the LPR otherwise established their intention to return to the United States as their permanent home.
On the other hand, a trip is deemed temporary if:
- It is for a relatively short period of time, fixed by some earlier event; or
- The trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.
Even if the anticipated event that would terminate the trip abroad does not occur within a relatively short period of time, the trip will still be deemed temporary if the LPR had a continuous, uninterrupted intention to return to the U.S. during the visit. Thus, LPRs who have been stuck abroad due to COVID-19 restrictions for longer than 6 months should be able to prove their intention to return to the U.S. if the reason for their prolonged stay abroad was COVID-19 health and safety restrictions or family illness that impacted the LPR’s ability to return to the U.S.
Absences of Longer than One Year
LPRs who have spent more than one year abroad have technically invalidated their Green Card document, Form I-551. Such individuals are still technically LPRs until the U.S. government proves by clear and convincing evidence that they have abandoned their LPR status. The opportunity for the government to prove abandonment would not arise until the LPR attempts to enter the U.S. under their LPR status.
On the other hand, LPRs who travel abroad for longer than a year may obtain a Returning Resident visa, also known as a SB-1 visa, if they overstayed their temporary trip abroad for reasons beyond their control and responsibility — a factor applicable to most COVID-19 related travel delays.
Absences During Green Card Expiration
LPRs whose Green Card document expires while travelling, or stuck, abroad can attempt to file Form I-90 from overseas in order to renew their Green Card. In January 2021, the USCIS announced that it will allow a receipt notice from Form I-90 to be submitted with an expired Green Card as proof of LPR status. Thus, simply filing Form I-90 overseas and obtaining a receipt notice may be sufficient to reenter the U.S. when presented with the expired Green Card document at a U.S. port of entry.
If an LPR with an expired Green Card document is denied reentry despite filing Form I-90, he or she can file Form I-93, Application for Waiver of Passport and/or Visa, which will be granted by Customs and Border Patrol (CBP) if it is determined the LPR did not abandon their LPR status.
Travel and U.S. Entry Requirements: Testing and Vaccination
LPR’s who have been abroad, even for under 6 months, will be required to adhere to strict testing and vaccination requirements in order to enter the United States.
Starting on December 6th, 2021, the U.S. Department of State began requiring all air travelers coming into the United States to show proof of a negative viral test result taken within one day of their flight’s departure to the United States. This applies to all travelers over the age of two, regardless of their nationality or vaccination status, including U.S. citizens, lawful permanent residents and foreign nationals.
Air travelers who recently recovered from a COVID-19 infection may instead show proof of having recovered from the disease within 90 days of their departure to the U.S.
On November 8, 2021, an order from the U.S. Centers for Disease Control began requiring all non-immigrant and non-citizen air travelers headed to the United States to be fully vaccinated prior to boarding a plan for the United States.
There are only a few select groups exempted from this requirement, including:
- Children under the age of 18;
- Individuals medically unable to receive the vaccine;
- Emergency travelers who do not have timely access to a vaccine;
- Those eligible for a humanitarian exemption, though this is rare.
Impacts on the Continuous Residence Requirement for LPRs Seeking Naturalization
LPRs who plan to become naturalized U.S. citizens are subject to the requirement that they maintain continuous residency in the United States for at least five (5) years as a LPR before filing the naturalization application. Continuous residency must be maintained throughout the naturalization process.
The continuous residence requirement raises challenges for LPRs stuck abroad during the pandemic who intended to become naturalized U.S. citizens because an LPR is deemed to have broken this requirement if he or she is absent from the U.S. for more than 6 months but less than one year or the LPR is absent from the U.S. for one year or more. Under this requirement, the LPRs intention for travel (i.e. whether it was permanent or temporary) does not matter — only the length of the LPRs absence is relevant to the continuity requirement.
An LPR may overcome the presumption that an absence broke the continuous residence requirement if the LPR can show through evidence that continuity of residence was not interrupted, despite the absence. This can be proven by documentation that shows:
- The LPR did not terminate his or her employment in the United States or did not obtain employment while abroad;
- The LPR’s immediate family members remained in the United States during the LPR’s absence;
- The LPR retained full access to or continued to own or lease a home in the United States