I have received numerous inquiries from green card holders who are outside the United States and have been unable to return to the United States in the COVID-19 period. They are unable to return either because there are no flights out of the country to the U.S. or they feel vulnerable to contracting the infection or they may have unfortunately contracted the infection. These green card holders are understandably concerned as their inability to return to the U.S. is due to no fault of their own.

However, no special exceptions of the physical presence requirement have been enacted so the rules are still the same: If you spend more than 6 months at a time outside the U.S., officers can  assume that you have given up your residence, if you spend more than 12 months at a time outside the U.S., officers will assume that you have given up your residence. So if you are not returning to the U.S. within a year, the green card technically becomes invalid for reentry to the U.S. This does not mean that you cease to be a lawful permanent resident automatically, the presumption can be rebutted with evidence showing that you are maintaining your life in the U.S. and didn’t want to give up or abandon your legal permanent residence.

If you are planning on leaving for a while, you may want to apply for a re-entry permit before your departure. Such re-entry permit can allow you an absence of up to 2 years. If you have a re-entry permit and are outside the U.S., you must return back prior to the expiration of the reentry permit.

Otherwise, if you remain outside the U.S. beyond the date of the reentry permit, the reentry permit is technically invalid as a travel document, but again, you can still claim to be a lawful permanent resident and show evidence that you didn’t want to abandon your permanent residence.

Green card holders stuck outside the U.S. have to also be mindful about their eligibility for naturalization. The eligible applicant must have at least 2.5 years of physical presence in the U.S. in the past 5 years prior to filing the application. If the applicant has been married to a U.S. citizen for 3 years, then the eligible applicant must have 1.5 years of physical presence in the U.S. Spouses and children who obtained lawful permanent residence as a result of being subject to extreme cruelty by a U.S. citizen are also allowed to apply for naturalization after 3 years. Furthermore, the applicant must be continuously residing in the U.S. during the relevant 5 or 3 year period.

A citizenship applicant who has been outside the U.S. for more than six months is deemed to have broken continuity of residence. This presumption of breaking continuous residence can be rebutted if the applicant can show that the applicant did not terminate his or her employment in the United States or obtain employment while abroad; the applicant’s immediate family members remained in the United States; and the applicant retained full access to or continued to own or lease a home in the United States.

Below are some brief answers to Frequently Asked Questions (FAQ) by concerned green card holders during the COVID-19 crisis.

Q: I am unable to return to the U.S. as all flights have been cancelled in my country. Will I have any problems if I return to the U.S. in excess of 180 days from my last departure?

A: Most likely, yes. If you are a green card holder and seek admission to the U.S. after being outside for more than 180 days, you will again be considered as an applicant seeking admission into the U.S. under INA 101(a)(13)(C)(ii). While you may be subject to more scrutiny at the port of entry as an applicant seeking admission, you will likely not be denied admission especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether you are returning within or in excess of 180 days, there may be other grounds under which you will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

Q: I am unable to return to the U.S. as all flights have been cancelled in my country. Will I have any problems if I return to the U.S. in excess of 1 year from my last departure?

A: The green card is technically invalid for reentry into the U.S. if you have spent in excess of 1 year outside the U.S. from your last departure. If your reason for not coming back was related to COVID-19, you may want to apply for a Returning Resident (SB-1) Visa at the U.S. Consulate as soon as it reopens to the public and explain that your inability to return was due to circumstances beyond your control. You must still demonstrate that you never abandoned permanent residence and that you are returning from a temporary visit abroad, continued to maintain ties with the U.S. and that you always had the intention to resume permanent residency.

Q: What if the U.S. Consulate refuses the SB-1 Visa, or has not resumed operations soon enough, and I have spent in excess of 1 year overseas from my last departure?

A: If your green card (Form I-551) has not expired, you may wish to travel directly to the U.S. and assert at the port of entry that you never abandoned permanent residency. While this may be more risky than applying for an SB-1 visa, the Customs and Border Protection official has discretion to waive you into the U.S. even without a technically valid I-551. The CBP official may ask you to complete Form I-193, Application for Waiver of Passport and/or Visa and pay the requisite filing fee. In the event that the CBP official does not waive you into the U.S., as a lawful permanent resident you have the right to have an Immigration Judge review your claim, and the burden of proof is on the government through clear and convincing evidence that you abandoned permanent residency.

Q: As a result of being unable to travel back to the U.S., I have gone beyond the expiration date of my reentry permit?

A: My responses to Questions 2 and 3 are equally applicable to one who has stayed beyond the expiration date of the reentry permit.

Q: Can I attempt to renew the reentry permit while stuck overseas?

A: No. You can only apply for a reentry permit while you are physically in the U.S.

Q: How will my being stuck outside the U.S. in excess of 180 days but less than 1 year impact my ability to naturalize?

A: You have to demonstrate that you have been physically present in the U.S. for half of the relevant period – 5 years or 3 years (if married to a U.S. citizen for 3 years) – preceding the filing of the N-400 application. In other words, you must demonstrate that you have physically spent at least half of 5 or 3 years in the U.S. Each day you spend outside the U.S. may erase the time you have already accumulated until you get readmitted into the U.S. and gain more days. Of course, if you have already accumulated days that exceed the threshold, you would still have sufficient time to spare.

If you are on the cusp, and will likely have less than half of the required time of physical presence in the U.S. because of your forced stay outside the U.S., then you may wish to consider filing the N-400 application from overseas in order to lock in the required physical presence.

Once you meet the physical presence test, you have to also demonstrate that you did not break continuity of residence. Being outside the U.S. for more than 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 U.S. There is no accommodation in the existing rules regarding remaining outside the U.S. due to circumstances beyond your control. You can still use a COVID-19 related ground to argue against the presumption of breaking continuity of residence.

Q: How will my being stuck outside the U.S. in excess of 1 year impact my ability to naturalize?

A: Unfortunately, whatever physical presence that was accumulated will be erased, and you will need to wait until you’ve accumulated the required time again, provided you have the requisite physical presence as discussed above, and you have also been continuously residing during the relevant period.

Q: Are there any exceptions if I am unable to meet the requirements of naturalization if I am stranded overseas?

A: Yes. Spouses of U.S. citizens who are employed abroad for certain organizations may not need to meet the physical presence of residence requirement. Most people who can take advantage of this exception are spouses of U.S. citizens working for an American corporation or its subsidiary abroad that is engaged in the development of foreign trade or commerce of the U.S.