How To Overcome A Lengthy Absence From The US As A Green Card Holder

Posted on Jul 18, 2022 by Chris Prescott

Once you obtain the green card you need to be careful not to lose it.  Obtaining a green card and maintaining permanent residence requires an individual to spend most of their time in the US.

When COVID hit a lot of green card holders got caught outside of the US and were forced to remain outside of the country for a lot longer than they originally anticipated.  For many, that absence extended beyond a year. Typically, an absence beyond 1 year invalidates the green card for travel back to the U.S.

If you remain outside of the U.S. for more than a year what are your options?

You generally have two options in this scenario:

Option 1: Apply for a returning resident visa, also known as an SB-1, at the Consulate.

Option 2: Board a plane and explain your lengthy absence to a CBP (Customs and Border Protection) officer.

While previously I have advised clients to apply for an SB-1 visa, Attorneys at the recent American Immigration Lawyer’s Association (AILA) conference advised Attorneys and their clients to go with Option 2.

According to AILA, during the pandemic, CBP has been very understanding with regard to lengthy absences outside of the U.S., provided the returning resident can explain why they were gone for so long and what attempts they made to return earlier.

If you decide to go with Option 1 and apply for a returning resident visa you will need to demonstrate to the satisfaction of the Consular officer that you remained outside of the U.S. due to circumstances beyond your control. Although it varies from post to post, a lot of Consular officers do not like the returning resident visa and there is a high rate of denial. The few cases that are approved take many months and require something exceptional, such as a hospitalization, that physically prevented someone from returning to the U.S.

Returning to Option 2, although it can be daunting returning to the US with an expired green card the chances of being admitted are high provided you genuinely intended to return to the U.S. sooner and can demonstrate this through documentation.

One key document to have when going to the airport is a document prepared by CBP and which can be found by clicking here.

This document specifically states that an airline may board a green card holder, with an expired 10-year green card, without penalty.  AILA advises individuals to go to the airport to check in and not to check in online.  If you check in online and have been outside of the U.S. for more than a year the reservation may get automatically canceled.  By going to the airline desk, you can explain everything to a staff member and show them the CBP document.  If they are not aware of this, you can ask to speak to a supervisor.  If the supervisor is not aware of this, you need to direct the supervisor to contact the Regional Carrier Liaison Group (RCLG) who should clear you for boarding.

Once you arrive in the U.S. you need to be prepared to articulate why you could not return earlier and back this up with supporting documentation.  A canceled plane ticket is great evidence of your intention to return earlier than you did.  You also need to be able to demonstrate ties to the U.S., such as family, filing of taxes etc.

Be prepared to be asked to go into secondary inspection, where you will meet with a more senior officer.  Those traveling with a U.S. Citizen spouse or children may have a better chance of being admitted.  The officer will ask you what your intention was when you originally left the U.S., why could you not return as planned and what attempts you made to return sooner.

While the chances of being admitted are relatively high for most, if you have been gone for over a year, without a good excuse you may be denied entry.

You will not be put into removal proceedings.  One of two things will happen.  You will be asked to withdraw your application for admission and go back to your home country.  Alternatively, an officer may state that they will admit you as a B-1/B-2 visitor, but only if you sign Form I-407.  Form I-407 requires you to surrender your green card and we do not recommend this unless you don’t mind giving up your permanent residency.

If a CBP officer attempts to deny you entry you should ask for a deferred inspection. This will require you to attend an appointment with a CBP office on a different date.  It will also give you the opportunity to meet with your Attorney and ensure you have the right documentation to overcome the doubts of the CBP officer.

If you have any questions regarding the above, please reach out to PLG Partner Chris Prescott at cprescott@patellegal.com.