By Radhika Balaji, Associate Attorney
The COVID-19 pandemic has led to an unprecedent amount of uncertainty—several proclamations, travel restrictions, and government lock downs have prevented many from freely traveling back to the US. Unfortunately, amidst the pandemic, the USCIS has not provided relief to Legal Permanent Residents (LPRs) of the US who are stuck out of the US. LPRs have certain obligations that must be met to maintain LPR status, including limits to time spent outside of the US. Below, we provide an overview of those obligations that relate to time spent outside of the US that still remain in place for LPRs in consideration of the COVID-19 pandemic.
Prolonged absences from the U.S. but still under 1 year
Typically, an LPR should spend most of their time in the U.S. otherwise they may be deemed to have abandoned their residence in the U.S. However, there is no specific guidance as to the actual time frame an LPR can be outside the US during a trip. The determinative factor is if the absence from the US was intended as only a temporary one.
When you return to the US after a prolonged absence (typically over 6 months), the Customs and Border Patrol (CBP) officers may require that you provide the reasons for your absence including the events that may have prolonged it.
As the Department of Homeland Security has not provided any type of blanket relief for people who have remained outside of the U.S. due to COVID-19, you should not presume that the CBP officer will accept this as an explanation without additional information or evidence. Instead, you may need to be ready to produce evidence specific to your situation which prevented you from returning to the U.S. as well as how you have maintained your ties to the U.S.
Travel over 1 year
If your visit abroad exceeds one (1) year, then you may consider filing a returning resident visa (SB-1) at a US Consulate while abroad to support the prolonged absence and temporary intent (https://travel.state.gov/content/travel/en/us-visas/immigrate/returning-resident.html). Typically, the success rate on this SB-1 visa is low. If the SB-1 visa is then approved, an immigrant visa application (DS-260) should be filed and approved which will allow you to enter the US again as a permanent resident.
If you have concerns about returning to the US after a prolonged absence of less that one year or for absences of more than one year, you should contact an immigration lawyer to assess your circumstances.
It is also important to keep in mind, that an absence of more than 6 month but less than 1 year raises a rebuttable presumption of breaking continuous residency for naturalization purposes. Also, an absence of one year or more (within the statutory period for filing naturalization application) breaks continuous residence requirement for naturalization. If you have a re-entry permit which you applied for while in the U.S. and before being outside of the U.S. for more than one year, when you return then you can seek naturalization within 4 years + 1 day (or 2 years + 1 day if married to a U.S. citizen).
Disclaimer: This is a general advisory and not the basis for specific legal advice. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Consultation: Please contact MPLG today to schedule a consultation for your individual concerns.
Radhika Balaji is an Associate Attorney with MPLG’s immigration practice. She manages the firm’s PERM practice and focuses on immigrant petitions, adjustment of status applications, as well as employment-based non-immigrant visa petitions. She also specializes on a variety of family-based immigration matters, including green card applications through marriage, removal of conditions on residence and naturalization.