What to Know Before You Go

By Devin M. Connolly & Nancy E. Miller

Departing the United States when you are not a U.S. citizen can lead to serious problems upon your attempt to return.  This is true for both lawful permanent residents and for non-citizens with pending applications or non-immigrant visas.

Many lawful permanent residents mistakenly believe that a green card guarantees their re-admission to the U.S. after traveling abroad.  Not true.  Everyone seeking entry into the U.S. is subject to inspection.  If questions of inadmissibility arise during these inspections, the non-citizen can be placed in secondary inspection or in Removal Proceedings where the alien will have to fight to remain in the U.S. and keep his lawful status.

There are many reasons why a person already granted permanent resident status may face problems when attempting to return to the U.S.  One common reason is based of the amount of time the alien has spent outside of the U.S. Attending school, working abroad, caring for an elderly relative, are all possible reasons for remaining out of the US for an extended period of time.  The issue is one of intent.  Did they intend to abandon their permanent resident status or did they always intend to continue to live in the U.S.?  The question is one of fact and must be resolved by sufficient persuasive evidence submitted by the alien.

To help reduce the risk of being charged with abandonment, the permanent resident who foresees being out of the U.S. for an extended period of time should obtain a re-entry permit.  The re-entry permit may allow a resident to remain outside of the U.S. for up to 2 years while maintaining permanent resident status. This travel document must be applied for before departing the U.S. and is usually granted for a 1 or 2 year period of time. However, while the re-entry permit makes admission at the end of the period of absence more likely, it is not a guarantee that the green card holder will be re-admitted as a lawful permanent resident.  Again, the question is one of intent and the evidence provided to show proper intent is essential.

A special immigrant returning resident visa (SB-1) may become necessary if the resident failed to obtain a re-entry permit before leaving or remained outside beyond its expiration date.  The SB-1 is issued by consular officers at a U.S. Embassy.  It 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.  They must also demonstrate that the cause of their protracted stay outside of the U.S. was beyond their control.  Consular officers begin their analysis by assuming that one who intended to remain a permanent resident would have applied for a re-entry permit prior to departing the U.S.  And it is the alien’s burden to persuade the officer that her conclusion is incorrect.

Another reason why a green card holder might be refused admission is a prior criminal conviction.  Crimes of a serious nature (and sometimes even those that might not seem serious) may result in a refusal of admission.  At that point, the alien could be paroled into the United States and given a chance to fight for their green card status in Immigration Court.   Resolution of this potential problem might include obtaining a waiver of inadmissibility or naturalizing (if eligible) prior to departing.

A person with a pending application for permanent resident status who did not obtain advanced parole before she left will be deemed to have abandoned her application.  So, advanced parole is essential if one wishes to travel out of the country and continue to pursue her application for a green card.

Advanced parole is also necessary in order to avoid incurring the 3-10 year unlawful presence bars for having remained in the U.S. in unlawful status beyond a period of time.  The Board of Immigration Appeals has ruled that aliens who travel on advanced parole are not considered to have departed the U.S. and, therefore, have not triggered these bars.

A non-citizen who entered the U.S. on one type of visa (such as a visitor’s visa) and then changed status (to student or H1B etc.) may be required to apply for a visa in that new category at their U.S. Consulate in order to return to the U.S.

Those in removal proceedings or with existing removal orders invoke a whole different set of problems that are not addressed in this article.

Anyone without U.S. citizenship should keep in mind that re-entry is not guaranteed.  It is the non-citizen’s burden to show that they are eligible for admission.  Give yourself the best chance of making your readmission to the U.S. uneventful.  Consult a knowledgeable and experienced immigration lawyer before you go.