News

By: Polina Dashevsky, Summer Intern

I am a US lawful permanent resident who has been caring for my mother in the UK for nine months.  She sadly had a heart attack during my visit to the United Kingdom.  Can I enter the US given the travel restrictions of the Presidential Proclamation of March 14, 2020 and my lengthy time outside the US?

US Lawful Permanent Residents (LPRs) as a rule should not reside outside of the US. Some do alternate six months in both the US and their home country, which is permitted. Sometimes situations beyond their control delay an LPR's return to the US. For example, LPRs may get mired abroad in a work project or academic program. Delays also happen due to illness, either of the LPR or a relative.

After being out of the US for six months, a lawful permanent resident will have a longer border inspection. If you are delayed due to the ill-health of a parent, bring with you to the US border (airport) evidence of caring for your parent.  The Customs and Border Protection officer may also ask for evidence of ties to the US.  This can include proof of renting or owning a home, proof of working in the US, or proof of US tax filings. After being out of the US for more than a year, an LPR should not rely on using their green card as a travel document! For such a difficult visit to the US, consult with a US immigration lawyer before travel.

During the pandemic, President Trump issued four physical presence related Presidential Proclamations, in which he stated that foreign nationals with physical presence of 14 days in the UK, Ireland, European Schengen area, China, Brazil or Iran are restricted from entering the United States.[1] The Presidential Proclamations do not set forth a date when the physical presence travel restrictions will be lifted.  Individuals who meet certain exceptions are still allowed directly into the US. Explicit / objective exemptions include those with lawful permanent resident status. Spouses, children (unmarried and under age 21), siblings (unmarried and under age 21) of US citizens and LPRs are also exempted.[2] These individuals can enter the US even if they have been physically present in the United Kingdom or the aforementioned countries. They can travel directly to the US, but only to select US airports.[3]

Foreign nationals whose entry would be in the national interest as determined by the US Department of State (US Embassies or Consulates) or the US Department of Homeland Security (Customs and Border Protection) may obtain a national interest exception or 212(f) waiver.[4] This category of exemption is not an explicit or objective one. Contact a US immigration lawyer to learn about qualifying and obtaining a national interest exception or 212(f) waiver.

Because LPRs fall into an explicit exception, they are free to travel to the US during the effective period of the COVID-19 physical presence travel bans. LPRs who have been absent from the US for six months or more should bring proof of what kept them abroad and their ties to the US for border inspection. If you have been abroad for more than a year, or worry that you will be, consult with a US immigration lawyer to discuss your re-entry options.

 

COVID-19 FAQ for Immigrants and Lawful Permanent Residents

Q1. Can I enter the US as a lawful permanent resident before December 31, 2020?

Yes! As discussed above, lawful permanent residents are unaffected by President Trump’s recent travel ban and are permitted and encouraged to enter the US.

Q2. Can I enter the US if I have an employment-based immigrant visa before December 31, 2020?

Generally, no.  An immigrant visa usually evidences the right to enter the US during its effective dates, barring any inadmissibility that took hold between issuance of the visa and the time that the immigrant visa holder was set to enter the US.  From April 22, 2020 to December 31, 2020, however, President Trump has blocked the entry of most employment-based immigrant visa holders with the ostensible rationale of bolstering the US labor market.[5]  Contact an immigration lawyer to discuss whether you qualify for a national interest exception or other exception to this immigrant visa holder travel ban.

Q3. Can I enter the US with an immigrant visa based on marriage to a US citizen before December 31, 2020? 

Yes, you may, if you bring proof of that marital relationship with you to the US border (airport). With certain exceptions, an immigrant visa holder is not allowed to enter the United States through December 31, 2020, under Presidential Proclamation 10052 (June 22, 2020).  Immigrant visa holders married to US citizens comprise one broad exception.  President Trump’s June 22, 2020 travel restriction exempts most immediate family members of US citizens. Therefore, a US citizen spouse may enter the United States on an immigrant visa!  

 

Glossary: Visa? Immigrant? Visa Status? Lawful Permanent Resident?

Visa

A US visa is a travel document that helps foreign nationals enter the United States. They are only issued by US consulates and embassies abroad.  Some visas require approval of an underlying petition for their approval.  The petitions are often adjudicated by the USCIS, the immigration agency based in the United States.  There are two types of visas. (1) Nonimmigrant visas are granted to foreign nationals who are seeking temporary entry into the United States.  Examples are business visitors/ tourists (B1/B2), students (F-1), and treaty investors (E-2). (2) Immigrant visas are granted to foreign nationals seeking permanent residence in the United States.

Immigrant

An immigrant is someone holding an immigrant visa, who has not yet entered the US on his or her immigrant visa for the first time.

Visa Status

A visa holder attains a status defined by their visa type upon the entry to the US. Therefore, when someone enters the US on a visitor visa (B visa), they have the status of a visitor (B visa holder status). Individuals who enter for the first time on an immigrant visa have the status of lawful permanent resident after that first entry. Until they make that first entry, they are immigrants or immigrant visa holders.  A person may go "out of status" if they breach the permitted activities of their status.  This can include leaving or losing a job, if one's status depends on employment.  This does not mean that a foreign national has started to accrue "unlawful presence."  ULP starts to accrue, most commonly, when one overstays a period of authorized stay as defined on their online I-94 entry form with a given date.

Lawful Permanent Resident

A lawful permanent resident (LPR) holds the status of lawful permanent residence.  Lawful permanent residence is the status attained after one enters the United States on an immigrant visa. It is evidenced by a stamp from a border officer on an immigrant visa, or by a physical LPR card mailed a few months after the first entry on an immigrant visa.  LPR cards used to be green, thus the common term for LPRs became "green card holders."  Those with LPR status can reside and work permanently in the US.  After continuous residence in the United States for the statutory period without breaks of more than six months, LPRs can become US citizens – if they are physically in the US for half the statutory period.[6]

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Footnotes

[1] E.g., Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus (PP 9996) (March 14, 2020) (limiting travel for foreigners from the United Kingdom and Ireland into the United States). The other Presidential Proclamations with physical presence restrictions (PP) were PP 9984 (January 31, 2020) (People’s Republic of China, excluding Hong Kong and Macau), PP 9992 (February 29, 2020) (Iran), and PP 9993 (March 11, 2020) (Schengen Area). 

[2] In addition there are these explicit exclusions
▪ a parent or legal guardian of a US citizen or LPR child (unmarried and under age 21)
▪ a foster child, prospective adoptive child, or ward of a US citizen or LPR
▪ those invited by the US Government to help with containment or mitigation of COVID-19
▪ airline employees or cruise staff traveling on C-1, D or C-1/D visas
▪ government officials traveling as A-1 or A-2, C-2 or C-3
▪ E-1 (as an employee of TECRO or TECO or their family)
▪ G visa holders working for international organizations

[3] Protecting Air Travelers and the American Public.

15 US airports permitted for international travel during the CoVID-19 pandemic.

• Boston-Logan International Airport (BOS), Massachusetts
• Chicago O’Hare International Airport (ORD), Illinois
• Dallas/Fort Worth International Airport (DFW), Texas
• Detroit Metropolitan Airport (DTW), Michigan
• Daniel K. Inouye International Airport (HNL), Hawaii
• Fort Lauderdale-Hollywood International Airport (FLL), Florida
• George Bush Intercontinental Airport (IAH), Texas
• Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
• John F. Kennedy International Airport (JFK), New York
• Los Angeles International Airport, (LAX), California
• Miami International Airport (MIA), Florida
• Newark Liberty International Airport (EWR), New Jersey
• San Francisco International Airport (SFO), California
• Seattle-Tacoma International Airport (SEA), Washington
• Washington-Dulles International Airport (IAD), Virginia

[4] The Presidential Proclamations were issued under the Presidential powers in Immigration and Nationality Act Sec. 212(f), so a waiver from these PP travel restrictions is sometimes called a "212(f) waiver."

[5] Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.

[6] The statutory period is three years if you are living in marital union with a US citizen and five years otherwise.