FAQ: Green Card holder stuck outside the US for more than a year
Hello,
I am a US citizen who Sponsored my fathers green card in 2010. His green card is expiring oct 2020. He had to stay in India since Jan 2019 due to health conditions. With the Covid pandemic situation and his age (81) and health conditions, he is not able to travel back to the united States before the green card expiry. My father does not have any family in India to take care of him and will have to come here so that my brother and I can take care of him. What are our options for avoiding the expiry of the green card? Secondly, is there a 60 day extension on the expiry date due to Covid 19?
Thank you,
Anu Pakala
------------------------FROM AURORA--------------------------------------
Subject: LPR Stranded abroad, weighing the stress of COVID vs the stress of defending LPR.
Rajeev, thank you so much for this amazing resource. I apologize in advance for the length of this, but perhaps calibrating one clear case will help many other stranded LPR’s make this difficult choice. I have tried to keep the details as concise as possible.
I'm early 60’s, UK Citizen and LPR/US Homeowner for 30 years. I have no home, business interests or accounts outside the US. My entire work history since college has been in the US (I started with F1’s and H1B’s). My young daughter was born and lives in the US. I raised her as a single dad in her early years. She now spends school semesters with her mother and school holidays with me. Since 2014 I have been studying for a new career, living on savings, with no income or tax filing requirement. My home is always available for use by myself, my daughter and her friends. But to help with cash flow, a year ago I rented one bedroom only, to a roommate, so am now preparing my 2019 1040 to report the income. To connect an NOL in my 2013 1040, I need to also file interim years 2014-18. No tax is due.
Since 2014 I have spent considerable time traveling (to use up expiring frequent flyer and hotel points), but never broke continuous residence. Most trips were 5 months, 3 months, or less. One trip - in 2016 - was extended to 8 months for unplanned health reasons. The purpose of each trip varied: vacation, voluntary work, a photographic study, meet my girlfriend, etc. Each trip “was expected to end within a relatively short period fixed by some early event”. My intent to live in US remained unbroken.
In December 2020, my absence from the USA will exceed 12 months. Currently, I am stranded under local COVID lockdown on an island in a Philippine province with my Filipina fiancee of 2 years. My age, gender, and medical history put me at a very high statistical risk of death from COVID. The route back home is complicated, through crowded areas, with multiple opportunities for COVID exposure. A doctor has strongly advised me against travel until the risk level improves. However, I am very worried about the nightmare of complications that losing LPR will cause. Maintaining my health also requires I minimize stress.
Lockdown delayed our marriage/CR1 plans, and Philippine requirements are complicated. We are now considering a simple fast US state online marriage service, then filing our CR1 online. Obviously filing a CR1 for my fiancee and I to reside together in the US is in itself a very clear intent NOT to abandon US residence, but given how hard they make it for LPR marriages to stay together during CR1, the irony of “wife free to visit” justification of canceling LPR after trying to stay together in Singh vs Reno, I can’t assume reason will prevail. I feel torn:
- Voice A says: Stay Safe. Build immunity. Return home in June 2021, parent my daughter for the summer, and face the stress of defending LPR.
- Voice B says: Risk Death. Return before December and secure LPR to avoid the stress of fighting to get it back. At under 12 months, and given the reason for delay and my profile, it will be much easier for the inspector to waive me through.
I really should chose A, but need to quantify the stress level of the possible outcomes of doing so. If I feel confident of outcomes 1 or 2 below, then I’ll choose A. If 4, then B. If 3, not sure.
Since I have a “colorable claim to LPR” and valid I-551, I conclude that at border re-entry in June 2021, upon presenting documentation showing COVID prevented return or access to embassy for SB1 - plus abundant documentation showing lifelong US ties - the only possible scenarios, if code and manuals are followed, ranked in order of stress, from low to high (with associate questions for you Rajeev) are as follows:
1. Admission (with possible warning note written in passport beside entry stamp).
Q1a. At 18 months absent, does an inspector have the authority to do just this?
Q1b. Is secondary inspection a certainty, or does an inspector have the authority to Admit without even that?
2. Admission with Form I-193: Application for Waiver of Passport or Visa and $585 fee.
Q2a. In my case, is it more likely inspector will demand this, versus simple Admission with advisory above?
Q2b. Can the front line inspector handle this at the line counter without secondary inspection?
Q2c. I understand I-193 is submitted to the local District Director who has the authority to grant the waiver. Is it the district local to the port of entry or local to LPR’s home?
Q2d. Do we know which districts (directors) are more understanding towards LPR’s?
Q2e. Is approval granted after a wait at the port of entry, or later by mail?
3. Deferred Inspection: later appointment at local DHS office (Form I-546).
Q3. I understand this can happen if the inspector does not have immediate access to relevant government records. Can I reduce this risk by arriving within regular workday business hours, at a major, well-equipped, airport? (versus land borders or foreign CPB Pre-Clearance airports)
4. Referral to Immigration Court. Sworn Statement & Form I-862, Notice to Appear (NTA).
Q4a. I read that this is rare, due to the time for inspector to prepare the documents, and the likelihood the DHS will bin it where LPR has colorable claim. Given how colorable my claim is, do you feel NTA is unlikely?
Q4b. If NTA does happen, I read “the courts are so overwhelmed it will take 4-5 years to get a date, which is sufficient to “re-establish residency and terminate proceedings”. On what basis, and with what Form, is that accomplished?
Q5. In each case - 2, 3 and 4 above - is confiscation of physical green card optional or mandatory?
Q6. Since I have been honest and committed no crimes, I assume Custody is not possible. Is this a safe assumption?
Q7. Even if I could travel to Manila to get an SB1, COVID risk plus the fact that the State Dept applies stricter rules than CBP, favors presenting my case to CBP at border. However, since the central premise of SB1 - “delay for reasons beyond LPR’s control” - perfectly fits COVID, do you feel SB1 is actually a much better path for me? (if the domestic travel risk falls low enough to make it available)
Q8. Do we know which US airports are more understanding towards LPR’s? Are foreign CPB Pre-Clearance airports - such as in Canada - a good choice?
Q9. If my fiancee and I enroll in my local college to gain qualifications needed for a future a business together, is there any remote chance the US government will allow her an F1 during our CR1 wait time?
While it seems reasonable to be confident that the USCIS will make a broad COVID exemption, given how many COVID provisions have already been announced, one for LPR’s is conspicuous by it’s absence, and therefore perhaps deliberate. Therefore it seems Darwinian analysis is our only option.
