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Has the USCIS (United States Citizenship and Immigration Services) relaxed the requirements on being physically present in the United States to maintain one's permanent resident status (a.k.a. green card) in response to COVID-19?


Background information motivating the question, but not necessary to answer the question:

The COVID-19 pandemic has affected the United States much more than most other countries. As a result, staying in some countries outside the United States may increase one's expected lifespan, and international travel is less convenient (mirror) as it used to be, sometimes even impossible from some countries (closed airports, or traveling restricted to corner cases such as diplomats or COVID-19-related workers).

The IRS has postponed the tax filing deadline from April 15 to July 15, 2020, and the due date of the taxpayer's section 965 installment payment has also been postponed to July 15, 2020. In Revenue Procedure 2020-20 (mirror), the IRS also provides some exception for the substantial presence test in response to COVID-19-related travel restrictions. As a result, I wonder whether the USCIS has relaxed the requirements on being physically present in the United States to maintain one's permanent resident status (a.k.a. green card) in response to COVID-19.


If that matters, I am a French citizen with a US green card.

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There is no such requirement to relax. The requirement is that the permanent resident not abandon his or her residence in the United States. But there is no specific threshold for the duration of absence that causes a permanent resident to lose that status.

The determination of abandonment is made individually in each case. Someone who has been away for an extended time because of the current pandemic will normally be in a better position to make a claim not to have abandoned residence in the US.

There are various thresholds at which different documentary requirements arise for returning to the US, which may be what you're thinking about, but these are statutory, so USCIS will have limited authority to waive them.

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  • Thanks, good point, I was thinking of raising those thresholds or be more flexible in their applications / acceptance of proof/documents when threshold are met, or whatever else to make it easier for green card holder staying abroad for a prolonged period of time not to lose their green card. – Franck Dernoncourt May 9 at 19:52
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    @FranckDernoncourt I imagine that they are exercising their discretion favorably where they can (ignoring my cynicism about preferential treatment for certain immigrants, which would anyway not affect you directly). That would be CBP, and most significant to people who've been away for between six months and a year. After a year, IIRC, it's necessary to go through the state department unless one got a reentry permit before leaving. I don't think they can change that deadline, but again they should be more likely to make a finding of nonabandonment and grant a returning resident visa. – phoog May 9 at 20:08
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    @phoog: "After a year, IIRC, it's necessary to go through the state department unless one got a reentry permit before leaving." After a year, they would not meet the documentary requirements for a returning immigrant if they didn't have a re-entry permit or returning resident visa. But that doesn't necessarily mean it's "necessary" to get a returning resident visa. If the person's green card is still valid, or they can otherwise make it to a US port of entry, they can try to travel to the US anyway and try their luck. – user102008 May 9 at 23:37
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    @phoog: CBP at entry has the authority to waive the documentary requirements under 8 CFR 211.1(b)(3) and 8 CFR 211.4. If the officer declines to waive the requirements, he/she can refer the person to removal proceedings in immigration court, and the immigration judge in immigration court can waive the documentary requirements if he/she determines that the person has not abandoned residence. – user102008 May 9 at 23:39
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USCIS is not usually involved in determination whether a permanent resident can return to the US. It would be the immigration officers at entry, part of the CBP, or the immigration judges in immigration court, that would deal with eligibility for entry. USCIS does deal with whether a permanent resident has enough continuous residence to qualify for naturalization,

There are two separate issues regarding the ability of a permanent resident staying outside the US for a long time to return to the US: the documentary requirements for re-entering the US, and abandonment of residence.

For the documentary requirements for an entering immigrant, the acceptable documents are listed in 8 CFR 211.1(a). The main ones applicable for a returning permanent resident are: a green card after a temporary absence of 1 year, a Re-entry Permit, or an immigrant visa (which would include an SB-1 returning resident visa). So a permanent resident who has been outside the US for more than 1 year without a Re-entry Permit would not have any document that allows them to return, and, going by the rules, would need to get a returning resident visa to return to the US.

There has been no "relaxation" in these rules, although the existing rules already provide some degree of flexibility. For example, 8 CFR 211.1(b)(3) and 8 CFR 211.4 allows an alien returning to unrelinquished permanent residence after a temporary absence abroad to seek a waiver of the documentary requirement with the officer with jurisdiction over the port of entry, and allows the officer to waive the alien's lack of such a document if they are satisfied that the alien has established good cause for the failure to present such a document. If the officer denies the waiver, and refers the person to removal proceedings in immigration court, the person can renew their application for a waiver before the immigration judge.

As for abandonment of residence, there are no clear regulations on this, and various case law has established that abandonment of residence is a subjective determination that depends on many factors, including the person's purpose for departing, whether the person had a definite date by which they expected to return, the person's place of employment, etc. It does not depend on length of absence alone, and thus there is no need to relax any rules for COVID-19.

For "continuous residence" for naturalization purposes (which is different from maintaining permanent resident status, as someone can interrupt "continuous residence" and still have maintained permanent residence status), an absence of between 6 months and 1 year is presumed to interrupt continuous residence, but this presumption can be overcome with sufficient evidence of having maintained ties to the US. Circumstances surrounding COVID-19 can already be considered in the determination whether this presumption is overcome. However, an absence of more than 1 year definitely interrupts continuous residence (unless one files N-470 which is only for someone working for the US government or certain US organizations abroad), and there has been no relaxation in this 1-year cutoff.

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  • Thanks for adding this answer. Despite my upvote, I have a nitpick: the green card may only be used after a temporary absence of "less than 1 year," so the green card is not useful if the absence is exactly one year or longer. (Do you have any idea how they calculate that?) Also, it's worth noting that the current fee for the waiver application is $585 (unless I've identified the wrong form from the list; the referring regulation only says "the designated form" without identifying it. – phoog Jun 2 at 20:55
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No, according to https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/faq-for-green-card-holders-during-the-covid-19-period (mirror):

If you meet the physical presence test, you have to also demonstrate that you did not break continuity of residence, and so remaining outside the US in excess of six months will lead to a rebuttable presumption that you broke continuous residence. Under current law, one can rebut the presumption by demonstrating that you did not move your residence or seek employment overseas, or your immediate family members remained in the US. There is no accommodation in the existing rules regarding remaining outside the US due to circumstances beyond your control. Still, an applicant is nevertheless encouraged to use a COVID-19 related ground to also rebut the presumption of breaking continuity of residence.

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