Clients who are Green Card holders (i.e. permanent residents) frequently ask me about issues they need to be aware of when traveling internationally, outside of the United States.
Here are some things to consider to minimize the potential for problems at the border. After a long intercontinental flight, nobody wants to find themselves in a position of being subjected to lengthy questioning by CBP officers at the airport. Particularly in situations where the Green Card holder has spent significant time (more than 6 months, typically) outside the U.S., there are potential pitfalls one needs to be aware of – or risk losing the highly-prized Green Card. CBP, interestingly enough, in its operations manual, has some good guidance on what immigration inspectors are to consider when inspecting Green Card residents seeking re-admission into the U.S.
Admission, generally The CBP officer shall admit a resident alien returning to an unrelinquished domicile, if not otherwise inadmissible, upon presentation of an unexpired Green Card (I-551), a reentry permit, refugee travel document (indicating lawful permanent residence), or temporary evidence of LPR status such as an Travel Statmp (or ADIT stamp).
A returning resident alien is not required to present a valid passport for reentry into the U.S., although most will have one, since a passport is often required for entry into a foreign country. When presented, the passport is normally annotated with “ARC”, and the alien’s “A” number should be written on the page with the admission stamp.
Admission after prolonged absences A Green Card holder, who has been outside the United States for more than one year (two, if presenting a reentry permit), may be seen by CBP to possibly have abandoned residence. Other indicators of possible abandonment of residence are:
(1) employment abroad,
(2) having immediate family members who are not permanent residents,
(3) arrival on a charter flight where most passengers are non-residents with return passage,
(4) lack of a fixed address in the U.S., or
(5) frequent prolonged absences from the United States.
In questionable cases, it is appropriate for CBP to ask for other documentation to substantiate residence, such as driver’s licenses and employer identification cards.
Green Card holder without Green Card? Lawful permanent residents (LPR) lacking evidence of alien registration because it has been left at home or in a safety deposit box, may obtain from CBP a visa waiver, with fee, or defer the inspection to another CBP office local to the Resident’s home in the U.S.
If the LPR claims the card has been lost or stolen, the POE may accept a Form I-90, Application to Replace Permanent Resident Card, with fee. These actions may be considered once the identity of the LPR has been confirmed, preferably by checking against the data contained in the CBP computer systems.
A LPR requesting a visa waiver must complete a Form I-193, Application for Waiver of Visa or Passport, if otherwise admissible. The applicant requesting the waiver is to review the information recorded on the printed form for accuracy and sign where indicated. If the waiver is approved, the LPR is to be given a copy of the Form I-193 and be admitted as a returning resident. If a waiver is denied, the applicant may be placed in removal proceedings before an immigration judge.
CBP officers can also use something called “deferred inspection”. This is usually limited to a Green Card or Visa holder who:
o will be able to produce the requisite document within a few days; or,
o claims to have lost or had the Form I-551 stolen, is unable to pay the Form I-90 fee at the time of initial inspection and has not been previously deferred for presentation of the Form I-551 document.
The LPR will be required to file a Form I-90 with U.S. Citizenship and Immigration Services (USCIS) within the next 30 days.
Conditional Residents A conditional resident is generally admissible to the U.S. if applying before the second anniversary of admission for conditional residence. The conditional resident may also be admissible if he or she has a boarding letter (or “transport letter”) from a U.S. consulate, has been stationed abroad under government orders, or is the spouse or child of a person stationed abroad under government orders. Otherwise, the applicant for admission as a conditional resident must have filed a joint petition or an application for waiver, Form I-751 (marriage-based cases) or Form I-829 (investment-based cases), in the U.S. within the 90 days before the second anniversary but not more than 6 months prior to the application for entry.
Once I-751 has been filed, the applicant will receive a receipt notice (I-797 Notice of Action) from USCIS, extending the conditional resident status for another year, allowing travel.
If none of those conditions exist, the inspector may defer the applicant to file Form I-751 or I-829 if there is reason to believe the Service will approve a petition or waiver. If the applicant is not admissible, CBP has authority to place him or her in removal proceedings.
Question of “Meaningful Departure” When examining a Green Card holder who has spent significant time abroad (usually more than six months), when there is a question as to whether the LPR may have abandoned his/her U.S. residence, the CBP inspector has to evaluate the situation and make a determination as to the LPR’s intent and the nature and reason for the prolonged absence from the United States. Prior to 1997, if a lawful permanent resident was believed to be inadmissible, immigration inspectors had to first make a determination whether his/her absence was “meaningfully interruptive” of permanent residence. Later revisions to immigration laws have formalized a ‘test’ for immigration inspectors to apply in this situation. Under this test, a lawful permanent resident is NOT considered to be seeking admission, unless the alien:
o has abandoned or relinquished that status;
o has been absent continuously for more than 180 days;
o has engaged in illegal activity after departing the U.S.;
o has departed under legal process seeking removal;
o has committed certain criminal offenses;
o is attempting entry without inspection; or
o has entered the U.S. without authorization by an immigration officer.
If CBP believes an LPR may be inadmissible or no longer entitled to lawful permanent resident status, CBP should refer the alien for removal proceedings if a deferred inspection is not appropriate.
Special Rules for Dependents of U.S. Service Members Spouses and children of U.S. Armed Forces servicemembers, or civilian employees of the U.S. Government, are exempt from many normal requirements for returning residents. If a dependent is a conditional resident, and the period of conditional residence has expired, CBP should admit the person and advise to file Form I-751 within 90 days.