By Dev Banad Viswanath, Esq., Coronavirus and Involuntary Abandonment of Legal Status in the United States
If the recent coronavirus outbreak prevents many green card holders from returning to the United States, they could lose their legal resident status. For fear of contracting the virus, an increasing number of travelers are opting not to travel and would rather remain at home. China was where the virus first appeared, but it has since spread to a number of other nations, including the United States, Italy, Iran, Japan, and South Korea.
Unfortunately, a green card holder may be found to have abandoned their card if they do not return to the United States within a year of traveling abroad. When a person with a green card stays in another country for at least one year without intending to return, this is called "involuntary abandonment of legal status." Immigration officers at the port of entry will determine whether the resident has abandoned their status in the United States when they attempt to enter the country following an extended trip abroad. If the officer determines that the resident has abandoned their status, the officer has the authority to revoke the resident's green card immediately. The individual will then be given the option of fighting the case in removal proceedings before the Immigration Court for deportation or withdrawing their application, which will result in the revocation of their green card. The green card will be reinstated if they succeed; if not, they will be ordered removed.
Applying for and receiving a reentry permit is one way to avoid issues with green card abandonment. In contrast to a green card, which is only valid for return after a maximum of one year abroad, the reentry permit is valid for up to two years. The travel document demonstrates an individual's intention to return to the United States to an officer at the port of entry by obtaining a reentry permit prior to departure.
The SB-1 returning resident visa is another option, but only after one year has passed and the individual is already regarded as having abandoned his residence. The SB-1 will enable the individual to re-establish residence by allowing them to return to the United States once as a green card holder. To obtain an SB-1 visa, an individual must demonstrate a very high threshold to a consular officer.
Green card holders should try to limit their trips abroad to less than 180 days and maintain strong ties to their homes in the United States in order to avoid abandonment. Takeoffs of one year or more will likewise impede the persistent residency prerequisite while applying for naturalization. Even if they have traveled with a valid reentry permit, a permanent resident's absence from the United States for at least one year will affect their ability to fulfill the continuous residence requirement for naturalization.
Green card holders need to be aware of their status and the time they are away from the United States, even though traveling right now can be risky. Anyone who is at risk of spending more than a year outside the United States should immediately speak with an attorney or the US consulate closest to them to discuss their options in light of the coronavirus and travel anxiety.
