By Attorneys Robert L. Reeves and Devin M. Connolly
The ability of non-citizens to reenter the United States after traveling abroad is an area of immigration law that is widely misunderstood. Many lawful permanent residents believe that a green card guarantees their re-admission to the U.S. Similarly, many permanent resident applicants also believe their pending application for a green card guarantees their admission. Travel abroad and re-entry is not always trouble free.
All persons seeking re-admission to the U.S. are subject to inspection. If the non-citizen is determined to be inadmissible, that person may be denied admission and may be ordered removed to his or her home country. Non-citizens should possess a valid, unexpired travel document. Three of the more common types of travel documents issued by the U.S. Citizenship and Immigration Service (USCIS) are:
Advance Parole: Advanced parole is issued to applicants who have a pending application for adjustment to permanent resident of status. The issuance of an advanced parole travel document allows the applicant to depart the U.S. while their application is pending with the USCIS.
However, advanced parole does not always guarantee re-admission to the U.S. The most common problem is that a non-citizen may be triggering a 3 or 10-year bar by departing the U.S. if they have overstayed his or her visa by more than 180 days in the U.S. The bar applies even if the applicant was granted advanced parole.
The Department of Homeland Security may allow the intending immigrant to re-enter the U.S. but it will also require a waiver for the unlawful presence bar. This waiver will only be granted if the applicant is able to demonstrate that his or her inability to live in the United States will result in extreme hardship to a qualifying relative (a parent or a spouse) who is either a United States citizen or lawful permanent resident. The applicant’s child is not a qualifying relative. Returning applicants are not “admitted”, but only paroled into the U.S. If the parolee is required to appear in immigration court, the parolee has less rights than applicants who were admitted.
The non-citizen should understand that by departing the U.S. prior to the issuance of their green card can otherwise affect their application, despite the obvious benefits of advanced parole.
Re-Entry Permits: Permanent residents (green card holders) often desire to remain outside of the U.S. for an extended period of time. They may wish to do so for a variety of reasons, including attending school, working abroad, or caring for an elderly relative. Despite their prolonged absence, residents may have every intention of returning and living in the U.S. However, extended travel is generally only possible with a re-entry permit.
The re-entry permit will allow a resident to remain outside of the U.S. for up to 2 years without the fear of losing their green card. This travel document must be applied for in the U.S. before departing the U.S. and is usually granted for a 2 year period of time.
Returning Resident Visas: A special immigrant returning resident visa (SB-1) may become necessary if the resident has failed to previously acquire a re-entry permit or has stayed beyond the expiration on the re-entry permit. It is issued by consular officers at a U.S. Embassy and Consulate abroad but will only be issued if the resident is able to clearly demonstrate that he or she always maintained the intent to reside in the U.S. Returning residents must also show that the cause of their protracted stay out of the U.S. was beyond their control. Consular officers are sometimes reluctant to issue a returning resident visa because they believe that residents should have applied for a travel documentation prior to departing the U.S.
Re-entry after travelling abroad requires proper travel documents. Green card holders and applicants for permanent resident must be aware of the limitations of the applicable travel document and the problems inherent in the re-entry process.