WHILE an absence from the United States of more than six months creates a rebuttable presumption that one intends to abandon permanent resident status, and an absence of over one year is deemed abandonment, the key idea is that a lawful permanent resident may travel abroad as long as her intentions to reside in the US remain unchanged.
Each time a lawful permanent resident tries to reenter the US, the resident is subject to an immigration inspection. If the resident who is subject to immigration inspection is determined to be inadmissible, that person may be denied admission and may be ordered removed from the US. A resident who is seeking admission at a port of entry generally must have in her possession, a valid and unexpired travel document. Depending on the person’s immigration status or if the person has an application for an immigration benefit pending, several types of travel documents are required if the person wishes to return to the US after travel abroad.
Before leaving the US, residents should ascertain whether they require a travel document to reenter the country or whether their departure will in any way impact their current benefits application. There are several types of Travel Documents issued by immigration authorities which are applicable:
Advance Parole
Generally, a person in the US who has filed an application for adjustment of status is deemed to have abandoned that adjustment of status application if she departs the US while her application is pending. The effect of an advance parole travel document is to permit travel, while preventing abandonment. An advance parole document permits entry into the US after international travel by means of parole to await the adjudication of the pending application.
A person’s application for an advance parole on the basis of a pending application for adjustment of status must be approved prior to departing the US. If granted, USCIS normally issues a 1-year, multiple-use advance parole document. If the resident departs prior to issuance of the advance parole document, her application for adjustment of status will be considered abandoned.
Re-Entry Permit
Often, lawful permanent residents may seek to travel abroad for over a year, but faithfully intend to reside permanently in the US. This can occur because the resident wants to finish school abroad, is employed abroad, desires to care for an ailing relative abroad, or any other of a number of reasons. In such instances, residents should consider availing of a re-entry permit, so as to minimize the chances of Green Card abandonment. Residents may use re-entry permits to seek to re-enter the United States if they have been absent for 1 year or more. This travel document must be applied for in the US before leaving the US, and is usually granted for a validity period of 2 years.
As are all non-citizens, re-entry permit holders are still subject to inspection at the port of entry and may be denied admission if they are inadmissible. While possession of a valid, unexpired re-entry permit travel document evidences intent to reside in the US, it does not guarantee admission into the US. The resident should also have a viable reason and supporting documentation for any departure from the US for over 6 months.
Even with a valid travel document, a resident who is in the US, but has accrued at least 180 days of unlawful presence, should carefully consider whether to leave the US, as doing so may subject her to a 3 or 10 year bar to re-entry.
Returning Resident Visa
While the advance parole and re-entry permit travel documents require forethought and planning prior to leaving the US, the reality of life is such that not all residents can predict their travel plans. As such, a resident sometimes leaves the US believing that she will return within 6 months or one year, but circumstances force her to alter her plans. In such instances, the resident may be eligible for a special immigrant returning resident (SB-1) visa, which is issued at US consular offices abroad.
Issuance of the returning resident visa is contingent on showing that the resident maintains the intent to reside in the US, and that the cause of the protracted stay out of the US was beyond the control of the resident. The resident must also show that she is eligible for the immigrant visa in all other respects.
Consular officers are reluctant to issue the returning resident visas, as residents have numerous chances to apply for travel documentation prior to departing the US. If a returning resident visa is refused on the grounds that a resident has given up her residence in the United States, she may have to apply for an immigrant visa on the same basis by which she immigrated originally, if circumstances permit.
While travel document options may be available for residents and for applicants whose residency application is pending, one should always avail of the service of experienced counsel prior to departing the United States.
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Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants’ rights. His offices are located in Pasadena, San Francisco, Las Vegas and Makati City.
Telephone: (800) 795-8009
E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Website: www.rreeves.com.
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The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the personalized representation that is essential to every case.
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