The COVID-19 global pandemic has resulted in travel restrictions by various countries and airlines. Many green card holders are not returning to the U.S. even if permitted, to avoid the risk of being infected, as well as due to inability to travel because of quarantine requirements or contracting COVID-19. Green Card holders on assignments abroad may return to the U.S. due to host country restrictions against individuals traveling from the United States. This has resulted in extended absences from the United States for Green Card holders.

Green Card holders should consider applying for a Reentry Permit (Form I-327) before departing the U.S. for a longer duration than six months and up to two years, or frequent travel over a two year period, or if a CBP officer has warned about a risk of abandonment.The Reentry Permit is evidence that the Green Card holder did not intend to abandon LPR status based upon solely travel outside of the U.S. for up to two years.

Like all international travelers, upon return, Green Card holders are subject to inspection by CBP. CBP may question and screen to determine whether they are a “returning resident” or whether they should be treated as an “arriving alien.” Under INA §101(a)(13)(C), a returning resident shall not be regarded as seeking “admission” to the United States, (i.e., shall not be treated as an arriving alien), unless, among other things, s/he has been outside the U.S. for a continuous period of more than 180 days or has abandoned or relinquished LPR status. Further, the Form I-551 Permanent Resident Card (green card) is valid as a travel document for absences of up to one year.

Some airlines have been refusing to board LPRs who have been absent for over one year, even when the I-551 card remains facially valid under 8 CFR 211.3, which states:

“An immigrant visa, reentry permit, refugee travel document, or a permanent resident card shall be regarded as unexpired if the rightful holder embarked or enplaned before the expiration of his or her immigrant visa, reentry permit, or refugee travel document, or with respect to a permanent resident card, before the first anniversary of the date on which he or she departed from the United States. provided that the vessel or aircraft on which he or she so embarked or enplaned arrives in the  United States or foreign contiguous territory on a continuous voyage. The continuity of the voyage shall not be deemed to have been interrupted by scheduled or emergency stops of the vessel or aircraft en route to the  United States or foreign contiguous territory, or by a layover in foreign contiguous territory necessitated solely for the purpose of effecting a transportation connection to the  United States.”

Airlines may also deny boarding of certain those with expired Green Cards (I-551 cards). Per 8 CFR 211.1(a)(2) an unexpired I-551 card (green card), immigrant visa, re-entry permit, or refugee travel document is usually required for admission with exceptions for expired documents relating to extensions filed by removal of condition applications or government employees.

If the Green Card is lost or stolen and the LPR has been absent for less than one year, the LPR must apply for a replacement card by filing Form I-90; this should also be filed if the Green Card (I-551 card) is expiring or expired. From January 2021, USCIS receipt notices for Form I-90 feature language serving as evidence of the extension of work and foreign travel authorization.

If the Green Card has been outside the U.S. for less than one year with an unexpired Green Card Card (I-551), or less than two years with a valid Re-Entry Permit (Form I-327) and does not have evidence of LPR status (lost, stolen, or destroyed/mutilated), then the LPR may also be allowed to board by obtaining carrier documentation, also known as a boarding foil, before travel to the U.S. A boarding foil alerts the airline that the traveler is a Green Card holder and is allowed to board a flight to the U.S. Applicants seeking a boarding foil may file a Form I-131A, Application for Travel Document (Carrier Documentation). The I-131A is not applicable if the LPR does not meet this criterion. The determination of whether the LPR has been outside the U.S. for more than one year is made by looking at the time between their initial departure date and the date the fee payment for the I-131A with USCIS is made. As long as the application fee for the boarding foil is paid before the one-year mark, the boarding foil can be issued after the fact.

Overcoming Airline Boarding Restrictions

1. Contacting CBP

Travelers can ask the airline to communicate with CBP’s Regional Carrier Liaison Group (“RCLG”) for assistance with their request to allow boarding. Please note that travelers (and their attorneys) cannot communicate directly with the RCLG.

When asking the airline to communicate with the RCLG, it may be helpful to provide information that supports the position that the LPR has maintained U.S. residence, that the extended stay was for reasons beyond his/her control and demonstrates any prior attempts to return to the U.S. residence in support of the request. It is advisable to properly document the plans and efforts of the traveler to return to an unrelinquished U.S. address in the form of:

  • canceled reservations
  • medical records
  • positive COVID tests
  • any verifiable document that may help establish the applicant’s intention to return to a U.S. residence they have not relinquished (example tax documentation, current cell phone bills, bank accounts, etc)

If the airline does not know how to contact the RCLG that serves its region, the CBP Port of Entry where the individual will be entering can be contacted to assist. If the RCLG’s guidance confirms the airline’s refusal to board, other options include the LPR presenting him/herself at a US port of entry or applying for an SB-1 visa at a US consulate or embassy.

2. CBP Preclearance or Land Border: Waiver,  or Abandonment alleged NTA

CBP has the discretion to waive a required entry document under INA 212(d)(4). This is done at a port of entry on Form I-193 Application for Waiver of Passport and/or Visa. This application must be made at a port of entry, which means that in the situation of an airline’s refusal to board, this strategy requires departing from a CBP preclearance inspection station or presenting the application for admission at a land border.

See 8 CFR 211.1(b)(3):

“(3) If an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad believes that good cause exists for his or her failure to present an unexpired immigrant visa, permanent resident card, or reentry permit, the alien may file an application for a waiver of this requirement withthe DHS officer with jurisdiction over the port of entry where the alien arrives. To apply for this waiver, the alien must file the designated form with the fee prescribed in 8 CFR 103.7(b)(1)… In the exercise of discretion, the DHS officer who has jurisdiction over the port of entry where the alien arrives may waive the alien’s lack of an immigrant visa, permanent resident card, or reentry permit and admit the alien as a returning resident if DHS is satisfied that the alien has established good cause for the alien’s failure to present an immigrant visa, permanent resident card, or reentry permit. …

Alternatively, An LPR who is deemed to be seeking admission may be charged as removable from the United States as an arriving alien. LPRs that are charged as removable, including those who are alleged to have abandoned their U.S. residence, have the right to a hearing before an immigration judge. Despite this, CBP may attempt to convince an LPR that their absence from the United States resulted in automatic abandonment of their U.S. residence, and urge them to sign a Form I- 407, Record of Abandonment of Lawful Permanent Resident Status an individual does not lose LPR status merely because of time spent abroad. An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and until an order of removal is issued and becomes final. Form I-407 must be signed voluntarily and there are no negative consequences if an LPR refuses to sign the form. Neither failure to sign nor abandonment of LPR status by itself is grounds for detention by CBP. If CBP makes a determination, that the LPR abandoned his or her residence in the U.S., and the LPR refuses to sign a Form I-407, CBP’s only recourse is to issue a Notice to Appear (NTA) in Immigration Court alleging abandonment. If CBP confiscate the LPR’s permanent resident card the Green Card holder has a right to have CBP issue temporary proof of the LPR’s status such as an I-94 card and/or passport stamp. CBP may direct the LPR to deferred inspection for processing. Once in removal proceedings, the burden shifts to DHS to prove by clear and convincing evidence that the Green card holder has abandoned residence. Notably, CBP pre-inspection ports have stated generally that filing a Form I-90, Application to Replace Permanent Resident Card, is helpful and that the post can issue NTAs, but that referral to deferred inspection is more likely. Moreover, issuance of an NTA is unlikely unless the absence has been significantly longer than a year. Abandonment is difficult for DHS-ICE to prove where the length of absence is not unreasonable under the circumstances, and further, LPR abandonment cases are not a prosecution priority.

3. Issues with Land Borders

CBP preclearance inspection ports are limited, but Canada and Mexico have restricted travel at land ports of entry to “essential” travel. Travel by lawful permanent residents is regarded as essential travel. Accordingly, a lawful permanent resident can present him or herself at a Land Border Port of Entry and request a waiver of a permanent resident card under 8 CFR 211.1(b)(3) if the facially valid permanent resident card is invalidated under 8 CFR 211.3. It is important that the lawful permanent resident present sufficient evidence of the reasons that prevented him or her from returning to the U.S. Please note that Canada has additional restrictions, including a COVID test and 14-day quarantine.

4. Apply for SB-1, Returning Resident Visa

An LPR returning to the U.S. after an absence exceeding one year without first securing a reentry permit can apply for an SB-1 Returning Resident visa by submitting Form DS-117, Application to Determine Returning Resident Status with supporting documentation. Consular operations are currently limited, making this strategy dependent on location and urgency of circumstances. The Foreign Affairs Manual describes the eligibility criteria for an SB-1 visa. The criteria are that the LPR is returning to his/her unrelinquished U.S. residence, the extended stay abroad was for reasons beyond his/her control, and that s/he was not responsible for the reasons for the stay abroad.

Two consular officers must sign off on the approval of the Form DS-117, which makes it exceedingly difficult to obtain depending on circumstances and consular post. Consular officers have discretionary authority on approvals. Some consular officers consider any stay outside of the United States beyond two years to be grounds for an automatic denial, whereas at other posts, stays beyond four or five years can still obtain approvals.

Generally, consular officers want to see that the departure from the United States was sudden and abrupt and that the applicant has evidence of attempts at returning or maintaining ties to the United States. This can include the following:

  1. A round trip ticket that had to be abruptly changed due to unforeseen circumstances
  2. Continued employment in the United States
  3. Filing U.S. tax returns
  4. Maintaining property ownership of a physical residence in the United States.

Consular officers will often consider the following as evidence of abandonment:

  1. Extended or frequent absences from the United States even before the LPRs long departure
  2. A one-way ticket from the United States
  3. Disposition of property or business affiliations prior to departure
  4. Strong family/business/or property ownership or ties abroad
  5. Failure to file U.S. tax returns, and
  6. Conduct while outside of the United States (such as employment, starting a family, running for office, or voting in foreign elections).

Some consular offices are reportedly being restrictive in their interpretation, and the existence of the COVID-19 pandemic alone may not suffice. Generally speaking applying for an SB-1 visa should be that last course of action, and only resorted to if all other fail,  but as in any case, the totality of the circumstances will determine the correct course of action and the outcome.