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My mom has a green card that expires 2028 but has been out of the US in the UK for over a year due to COVID travel restrictions. Can she enter now?

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    Note that the COVID travel bans did not apply to permanent residents, so, by themselves, they are probably not a valid reason for not having returned, though other aspects of the pandemic may be valid reasons.
    – jcaron
    Nov 8 '21 at 7:02
  • Unfortunately there is no way of knowing before you get there. It's up the discretion of the local CBP officer, they can decide to just let her in or determine that she as "abandoned" her green card, whatever they feel like on any given day. Nov 8 '21 at 12:17
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    @Hilmar a CBP officer, however, does not have authority to make a formal administrative determination of abandonment. If the officer believes that the applicant for admission has abandoned residence, the officer can either talk the applicant into admitting abandonment or refer the applicant to an immigration judge, as noted in user102008's answer. If the permanent resident can get to the border and does not sign the I-407, then the permanent resident cannot be turned back immediately (barring improper conduct on the officer's part).
    – phoog
    Nov 8 '21 at 15:22
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    @jwenting in this case, there is no superior of an immigration officer (IO) who can make it official. An immigration judge (IJ) is not a superior of an IO. It's a different department of the government. The hearing does not occur immediately. Rather, the permanent resident is "paroled" into the US (physically allowed to enter but not "admitted" in the legal sense) until the hearing in the immigration court. See help.cbp.gov/s/article/Article-3671?language=en_US. Also, the PR can be represented by a lawyer at the hearing. The IJ's decision is subject to appeal.
    – phoog
    Nov 9 '21 at 8:20
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Assuming she doesn't have a valid Re-entry Permit, she technically doesn't have one of the accepted documents for entry of a returning immigrant, as listed in 8 CFR 211.1(a). A green card is not one of the accepted documents after an absence of more than 1 year, and she doesn't have any of the other documents, like a Re-entry Permit or an immigrant visa.

However, under 8 CFR 211.1(b)(3) and 8 CFR 211.4, the immigration officers at the port of entry have the authority to waive her failure to meet the documentary requirements, if they determine that she has not abandoned residence. They often will grant the waiver if it's the first time, the absence is not too much over a year, and/or there is a good reason for not returning earlier (e.g. COVID-19). So if she manages to make it to a US port of entry, there is a good chance they will just let her in, perhaps with a warning.

The officer could deny her entry, and pressure her to voluntarily sign I-407 to relinquish her permanent residency. This is voluntary, and she can refuse. If she refuses, they will give her a Notice to Appear for removal proceedings in immigration court at a later date. There, she will be able to present her case to the immigration judge, and if the immigration judge determines that she has not abandoned residence, the immigration judge can grant the waiver for her failure to meet the documentary requirements (think of it as a second opinion on the immigration officer's decision).

The other option to all this is that she can apply for an SB1 returning resident visa at a US consulate (which will meet the documentary requirements since it is an immigrant visa). However, this requires showing that she could not return any earlier due to circumstances beyond her control (which may be harder to prove than showing that she did not abandon residence). Also, there is no appeal for visa denials.

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    Will they let her board the plane in the first place? I tend to imagine the airline would not want to deal with this uncertainty.
    – Kevin
    Nov 8 '21 at 19:40
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    @Kevin: I've heard cases of this with some airlines in some countries, but I haven't seen any official US government requirement for airlines to check the length of time a green card holder has been away (e.g. the carrier information guide doesn't have such a requirement), so I'm not sure if it's just the policy of specific airlines or staff members.
    – user102008
    Nov 8 '21 at 23:16
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    @Kevin: And on a practical level, how would an airline check? The US has no exit stamps. They might check for entry stamps to another country, but in some countries those stamps may not always be made, or the person may have lost their passport and gotten a new passport with no entry stamps. So there is no foolproof way for the airline to check.
    – user102008
    Nov 8 '21 at 23:17
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    @user102008, I think what will happen is that the airline will send the passenger's information to the CBP via APIS and the CBP will return a board/don't board response. What the CBP will do I know not, but it will be the CBP that does it.
    – Dennis
    Nov 9 '21 at 1:45
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    @Kevin airlines have very little uncertainty. There is a myth that they have to pay a fine when a passenger is denied entry. The truth is that they have to pay a fine if the passenger lacks the proper documents (and of course if they disregard a "do not board" instruction via APIS). Airlines are not held liable for all refusals at the border because if they were then they would be doing criminal background checks on all of their passengers, which nobody wants.
    – phoog
    Nov 9 '21 at 8:34

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