What Every Non Citizen Should Know Before Traveling

By Attorneys Robert L. Reeves and Jeff L. Khurgel

Last week we detailed the laws governing the length of time a lawful permanent resident can spend outside of the United States without placing his or her Green Card status in jeopardy. 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 U.S. remain unchanged.

Each time a lawful permanent resident tries to reenter the U.S., 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 U.S. 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 U.S. after travel abroad.

Before leaving the U.S., 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 U.S. who has filed an application for adjustment of status is deemed to have abandoned that adjustment of status application if she departs the U.S. while her application is pending. The effect of an advance parole travel document is to permit travel, while preventing abandonment. An advance parole document is issued solely to authorize the person who travels to a U.S. port of entry to seek parole into the United States to await the adjudication of the pending application.

A person’s application for an advance parole document on the basis of a pending application for adjustment of status must be approved prior to departing the U.S. 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 U.S. 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 U.S. before leaving the U.S., 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 re-entry permit travel document evidences intent to reside in the U.S., it does not guarantee admission into the U.S. The resident should also have a viable reason and supporting documentation for any departure from the U.S. for over 6 months.

Even with a valid travel document, a resident who is in the U.S., but has accrued at least 180 days of unlawful presence, should carefully consider whether to leave the U.S., 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 U.S., the reality of life is such that not all residents can predict their travel plans. As such, a resident sometimes leaves the U.S. 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 U.S. consular offices abroad.

Issuance of the returning resident visa is contingent on showing that the resident maintains the intent to reside in the U.S., and that the cause of the protracted stay out of the U.S. 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 U.S. 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.