Re-Entry Permits - Part 1. No Guarantee of Re-Entry
The other day I posted an entry on the topic of re-entry permits and the issue of biometrics scheduling. The Form I-131 application for a re-entry permit must be filed by a permanent resident while he or she is physically in the U.S. and since biometrics are now required (something that may not be scheduled for weeks after the I-131 application is filed), the delay can wreak havoc on the applicant’s travel plans. Here is the prior posting.
I thought it would be helpful, in my next postings over the next few days, to review some other basics of re-entry permits and clear up some misconceptions about the protections a re-entry permit may or may not provide.
First and foremost, possession of a re-entry permit does not guarantee entry into the U.S. If a permanent resident departs the U.S. with the intent of remaining outside the U.S. for a period of more than one year, he or she must have a re-entry permit in order to re-enter. However, just because they do does not mean that Customs and Border Protection cannot still deny entry. On the contrary, CBP can still find that the permanent resident has abandoned their permanent residency. The re-entry permit simply means that CBP cannot use the absence of more than one year alone as a reason to deny entry.
If CPB determines that it was the intent of the permanent resident to abandon his status then entry will be denied, re-entry permit or not. The intent of the permanent resident is what controls. The only way to determine one’s intent is to look at all the circumstances surrounding the temporary trip abroad.
Was the trip for a relatively short period of time that is fixed by some event that will take place relatively soon? If the trip was not fixed in time, did the trip end when something specific happened that was expected to happen soon? If the trip was not fixed in time or did not end soon after some event happened, did the permanent resident still really always intend to return nonetheless? For example, did the permanent resident maintain family in the U.S., a home or other real estate, business ties, etc. How long had the person been a permanent resident, what ties does the person have in the foreign country, etc.
All of this sounds very theoretical, so in my next posting, I’ll give some specific examples of people who have been determined to have abandoned their permanent residency and others who were ok.
Some think that a very safe thing to do is obtain a re-entry permit even for a visit that is not expected to last more than a year. Whether this is really necessary can only be determined on a case-by-case basis and with any question about a re-entry permit, a permanent resident should consult with an immigration attorney before leaving the U.S.
