Tag: CBP

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Green Card Holders Unable to Timely Return to the U.S.

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We have heard of some clients who are unable to return to the U.S. after a temporary visit abroad – for example to the Philippines – due to COVID-19 related reasons. Either (1) they cannot get a flight back to the U.S. or (2) their health situation makes them vulnerable to contracting the corona virus or (3) they already have the corona virus. What will be the impact of their extended stay outside to the U.S. to their status as green card holders?

Let’s look at 3 scenarios:

First, the green card holder has been in the Philippines for more than 6 months. What will happen when s/he finally returns to the U.S?

If you are returning after more than 6 months, there will be the usual strict scrutiny by the CBP officer because you are considered to be seeking admission. Meaning to say, your green card is not just sufficient for entry, they will have to look whether or not there are reasons to deny your entry. But if you mention that the COVID-19 circumstances had prevented you from returning, more likely than not you will have no problem entering the U.S.

Second, the green card holder has been outside the U.S. for more than 12 months.

If you are a green card holder, you should not stay outside the United States for more than 1 year. So what happens if you stayed for more than a year, you will be deemed to have abandoned your residence. You need to obtain the SB-1 or returning resident visa from the U.S. Embassy and explain that your reason for untimely return is a COVID-19 related reason; more likely than not, you will be granted a returning resident visa as long as there is no proof that you have abandoned your resident status in the U.S. If you are in a rush to return and you flew in the U.S. without the returning resident visa, you will be asked by CBP to explain your absence for one year and they may allow you in anyway if it is a COVID-19 related reason.

Third, the re-entry permit of the green card holder already expired.

The same as scenario 2. If you have COVID-19 related reasons, you can return to the U.S. by obtaining a returning resident visa, or flying to the U.S. without it and explaining to the CBP officer that COVID-19 related reason had prevented you from returning. Again, you should show that you have not abandoned your U.S. residence even if you stayed abroad during the validity of your re-entry permit and beyond.

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Effect of Shutdown On Immigration-Related Programs & Applications

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For three weeks now, a partial government shutdown is still in effect. What is the impact of this shutdown on immigration related programs?

A. Court Hearings of Non-citizens in Removal Proceedings

With 800,000 cases pending before immigration courts nationwide, the partial shutdown only worsens the backlog. At the moment, the immigration courts under the Department of Justice’s Executive Office on Immigration Review (EOIR) are not hearing cases of non-detained individuals and their hearing if scheduled during the shutdown will be reset for a later date. Individuals who are in detention will proceed with their scheduled hearings.

B. USCIS Petitions, Applications and Interviews

Most family and employment-based petitions, applications for naturalization, adjustments of status and other applications are accepted by the U.S. Citizenship and Immigration Services (USCIS). Unlike other federal agencies, USCIS is a fee-funded agency and is open for business despite the federal budget issues. It will remain open and individuals seeking immigration benefits must attend interviews and appointments as scheduled. The only programs that are suspended during the shutdown are the following:

  1. EB5 Immigrant Investor Regional Center Program;
  2. E-Verify;
  3. Conrad 30 Waiver Program for J1 medical doctors; and the
  4. Non-minister religious workers petitions.

C. Consular Processing with the National Visa Center and U.S. Embassy

Those with approved petitions and individuals whose visas are available for processing are not affected by the shutdown. The Department of State issued an announcement on December 22, 2018 stating that all visa services in the United States and at U.S. Embassies/Consulates overseas will continue during the partial shutdown.

D. Application for Temporary and Permanent Visas at the U.S. Embassy

Visa operations are fee-funded so the U.S. Embassies will continue functioning despite the shutdown. Those applying for visas and who have scheduled interviews must attend their scheduled appointments for visa issuance.

E. U.S.Passport Applications

For travelers whose passports are expiring or first time applicants, the Department of State announced that their passport offices are open to receive applications. The National Passport Information Center still accepts telephone calls and inquiries from the public.

F. ICE Enforcement and Removal

The ICE remain operational during a government shutdown. According to ICE Spokeswoman Gillian Christensen, ICE is deemed a law enforcement necessary for the safety of life and protection of property. This mean that ICE may still enforce a removal orders or may conduct raids as it deems necessary. There are 15,254 ICE employees who are working without pay because of the shutdown.

G. CBP and those Entering the U.S.

CBP agency is considered “essential” and so ports of entry will be open. CBP officers will remain on duty but will not be paid during the shutdown.

The information above is obtained from the different respective federal agencies’ public notices regarding the effect of the current shutdown. With the bi-partisan politics and opposing views on immigration, the shutdown may continue for a while. Recent studies show that majority of Americans have always been opposed to a border wall. But if the government is reopened, hopefully it will happen without a border wall funding since there is no imminent threat to national security to substantiate the significant cost being requested by President Trump.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco-based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)