Canero Covid Immigration Faq

Answers to Frequently Asked Questions (FAQ) by Lawful Permanent Residents During the COVID-19 Crisis

1. I am outside the US and unable to return because all flights have been cancelled in my country due to COVID-19. Will I have any problems if I return to the US more than 180 days from my last departure?

Most likely, yes. If a green card holder seeks admission to the US after being outside for more than 180 days, he or she will again be considered as an applicant seeking admission into the US under INA 101(a)(13)(C)(ii). While you may be placed in secondary and subject to more scrutiny on your return, you will likely not be denied admission if the reason you were unable to return within 180 days was due to COVID-19 restrictions. Be prepared to prove that you were unable to secure a return flight from your home country with evidence of flight cancellations and border closures.

2. I am outside the US and unable to return because all flights have been cancelled in my country due to COVID-19. Will I have any problems if I return to the US more than one year (365 days) from my last departure?

The green card (Form I-551) is technically invalid for reentry into the US if you have spent in excess of 1 year outside the US from your last departure. If your reason for not coming back was related to COVID-19, you should apply for a Returning Resident (SB-1) Visa at the US Consulate as soon as it reopens to the public and explain that your inability to return was due to COVID-19 and beyond your control. You must still demonstrate that you never abandoned permanent residence by demonstrating that you are returning from a temporary visit abroad, continued to maintain ties with the US (ie. you maintained a US residence, employment in US, filed taxes as a US resident, and/or your immediate family was in the US during your absence) and that you always intended to resume permanent residency.

3. What if the US Consulate refused the SB-1 Visa, or has not resumed operations soon enough, and I have spent in excess of 1 year overseas from my last departure?

If your green card (Form I-551) has not expired, you may wish to travel directly to the US and explain at the port of entry that you never abandoned permanent residency. AS explained in questions 1 and 2 you should be prepared to prove that your absence was due to circumstances beyond your control (border closures and flight cancellations due to COVID-19) and that you maintained ties with the US during your absence. While this is more risky than applying for an SB-1 visa, the Customs and Border Protection official has discretion to waive you into the US even without a technically valid I-551. The CBP official may ask you to complete Form I-193, Application for Waiver of Passport and/or Visa and pay the requisite filing fee. In the event that the CBP official does not waive you into the US, as a lawful permanent resident you have the right to have an Immigration Judge review your claim for which you should retain counsel to defend your absence was temporary and that government did not meet its burden and prove abandonment in light of the circumstances.

4. As a result of being unable to travel back to the US, I have gone beyond the expiration date of my reentry permit?

The answers to Questions 2 and 3 are equally applicable to one who has stayed beyond the expiration date of the reentry permit.

5. Can I attempt to renew the reentry permit while stuck overseas?

No. You can only apply for a reentry permit while you are physically in the US.

6. How will my being stuck outside the US in excess of 180 days but less than 1 year impact my ability to qualify for citizenship?

In order to naturalize, you have to demonstrate that you have been physically present in the US for half of the relevant period – 5 years or 3 years (if married to a US citizen for 3 years) – preceding the filing of the N-400 application; 913 days and 548 days respectively. Each day you spend outside the US may erase the time you have already accumulated until you get readmitted into the US and gain more days. If when you departed the US you already had exceeded the amount of days in US required for you to naturalize, you may still have enough days to meet the requirement despite your prolonged absence. It is important that you maintain a record of all you entries and exits from the US from the date you were granted LPR status and track how many days you were outside the county as the I-94 history on CBP website is often inaccurate and you will need an accurate record of these travel dates for your naturalization application (the departure and arrival dates of travel count as days you were physically present in US for purposes of this calculation).

If you are close to the 913/545 day thresholds, and will likely have less than half of the required time of physical presence in the US because of your forced stay outside the US, then you may wish to consider filing the N-400 application from overseas in order to lock in the required physical presence.

If you meet the physical presence test, you have to also demonstrate that you did not break continuity of residence. Remaining outside the US in excess of six months, but less than one year, will lead to a presumption that you broke continuous residence which you may rebut by proving that you maintained residence and/or employment in US (that you did not seek employment abroad), and that your immediate family members remained in the US. If you remained abroad for a continuous period of more than 180 days you should consult with an attorney to asses your eligibility for naturalization and guidance on how to demonstrate your continuous residence despite that absence.

7. If I am able to return to the US, will my being stuck outside the US in excess of 1 year impact my ability to qualify for citizenship?

Unfortunately, whatever physical presence that was accumulated will be erased, and you will need to wait 4 years and 1 day before you can file Form N-400 again, provided you have the requisite physical presence as discussed above, and you have also been continuously residing during the relevant period.

8. Are there any exceptions if I am unable to meet the requirements of naturalization if I am stranded overseas?

Yes. Spouses of US citizens who are employed abroad for certain organizations may not need to meet the physical presence of residence requirement. Most people who avail of this exception are spouses of US citizens working for an American corporation or its subsidiary abroad that is engaged in the development of foreign trade or commerce of the US, but see Chapter 4 – Spouses of US Citizens Employed Abroad of the USCIS Policy Manual for further details and other exceptions.

Credit: Adapted from article by Cyrus Mehta, ‘FAQ for Green Card Holders during the COVID-19 Period’, The Insightful Immigration Blog. A tremendous resource for practitioners and immigrants alike Cyrus Mehta writes well-researched analyses of immigration regulatory provisions, policies and jurisprudence in a clear and instructive manner.

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