2021 AILA Conference Day 4 Session 1: Re-entry Permits After Staying Outside The United States For Too Long

Hi everyone, this is Joseph. We are here watching this in the wee hours of the morning, seeing what the experts have to say about this issue and I know attorneys who are overseas watching this, midnight over there. There’s so many good advice, all condensed into this one session. So, if you have this problem, you need to go download it from AILA Agora or AILA University. But here are the key takeaways. Let’s get to it.

[Tsang Intro Splah]

[0:26] They start their session talking about their pre-immigration planning sessions. And you know these attorneys are some of the best because they go through this procedure. They don’t just help a client get the green card and then no additional service. But after getting the green card for the client, they spend the time to really educate the client on how to maintain this green card, how do you plan to establish roots here? Because a lot of people have the misconception that a green card is just a glorified tourist visa.

Now you don’t have to go to a consulate anymore, you don’t have to buy a ticket. You can just use your green card and go in and out of the country. But that’s not the case. And here’s the key question: how do you prove that the U.S. is your home even if you’re not here for some time? Well, your residence, tax return, bank accounts, licenses, your company, are you serving as a board of a director for your company or for a non-profit? Do you give to charity? Are you part of any conferences that you’re attending? Are you a speaker? Are you part of any key memberships? Do you win any awards? All of these things help establish the ties that you have here in order to prove that you did not abandon your residency. And that goes to their second point.

[1:28] The second point is how long is too long? So, if you’ve been out of the U.S. for six months to a year, well, you might have a problem. If you’ve been outside of the U.S. for over one year but you have a re-entry permit, you might have a problem. But if you don’t have a re-entry permit, then you may have a bigger problem. If you’ve been outside for over two years with a re-entry permit, it’s a big problem. If you’ve been outside for over two years without a re-entry permit, you have a big problem.

So that begs the question: what is a re-entry permit? Well, it’s exactly what the name says. It allows you to come back in even though you’ve been out of the country. And that tells you something, right? As a green card holder, if you need to leave the U.S. for some time, you need to apply for a re-entry permit so you could get back in. That shows you that you cannot just easily leave the U.S. even if you are a green card holder. And re-entry permits are notoriously difficult to apply for because of the lengthy time it takes to get it. So, let’s say you need to leave the U.S. for a year, applying for it, you might not be able to get it until six months later. Think about that, right?

You might have an urgent reason to travel for a long time. Maybe your father is about to pass away and this is his last six months and you need to leave and to spend the six months with him. You quit your job and you leave. Well, it might take six months to get that re-entry permit before you could come back. And during the pandemic, of course, a lot of people left thinking they’ll come back within a short month or two months, but for all of the reasons that is happening in the world, they can’t come back for over a year. They didn’t get the re-entry permit, and now they’re stuck.

[3:03] So the first thing that the panelists really urge is to get the re-entry permit, and they talked about exactly how to get it. It’s a wonderful podcast you totally need to download from AILA Agora.

Now, it’s not impossible to get the re-entry permit expedited. There’s a lot of phone calls you need to make, there’s a lot of documents you need to prepare, there’s a lot of people you need to beg. But as attorneys, that’s what we do. We are, in a sense, professional beggars. We tell the officers, “Dear kind officer, please understand the special circumstances surrounding our client’s case. May you use your discretionary power and grant in favor of our client this particular matter and expedite the process. So normally, it will take, I know, two to three months to get the biometrics fingerprinting done. But please allow this particular exception just this one time so that our client can get it within a few days because they need to leave. The plane ticket is already purchased, the father is about to pass away. Use your discretionary power, make America great. This is what America is all about.”

[4:00] So the client files the re-entry permit, we beg the officer to allow for this expedited processing. They grant the biometrics within a few days, the client is able to go get their biometrics done, fly out of the country, and then the re-entry permit gets mailed to their house or our office or any law office. And then we take it and FedEx it over, and now the client can be at peace, have the green card in hand, have the re-entry permit in hand, and hopefully return within the time frame of the re-entry permit.

Some re-entry permits are only valid for one year, think about that, right? You need to urgently leave the country for a long duration and for an urgent reason, it takes six months before you can get the re-entry permit, and then it’s only valid for one year. Now luckily, a lot of re-entry permits are valid for two years.

[4:44] Now that the client is outside of the country with or without a re-entry permit, any time has elapsed, how do they get back to the U.S.? The panelists talk about there are two options.

One way to do it is to go to the consulate and get an SB1 visa. They talk about all the intricacies and what you have to do in order to get that done. They mentioned that it is extremely difficult. So from what they have seen, cases have been denied at the consulate level regarding this, and it’s much more difficult to prove. And one of the things that I said that’s really interesting is you can’t just say, because of the pandemic, I couldn’t leave. Now, I knew that that’s the case with the CBP officers here in the U.S. They explicitly said last year we’re no longer going to accept the pandemic as a reason because green card holders are permitted to come back to the U.S. There’s no travel ban against them, so why didn’t you come back? Even people with visas that needed urgently traveled, they came back. So, how about you, green card holder? So… the pandemic is no longer a reason that’s valid with CBP.

[5:49] But I didn’t know that the consulates would require additional specific reasons, even though they are there in that country adjudicating those cases. So, the panelists were sharing examples and stories that when they went to the consulate to apply for the SB1 visa, they had to specifically talk about the country’s condition and their family’s condition and why they couldn’t go back, and maybe there’s a travel ban and there’s a lack of airlines available for that country, they couldn’t fly out, all sorts of specific reasons to them. And then they can get the SB1 visa. But the panelists were saying that it’s extremely difficult to get.

[6:25] They also mentioned there are two additional risks with applying for the SB1 visa at the consulate. The first being, even if your SB1 visa gets denied, they might confiscate your green card, and that is very worrisome because I know that that is illegal. Nowadays, all the consulates have stopped cancelling people’s green cards, forcing people to file for I-407. It should just be the procedure on fam, should just be, we cancel your visa, you need to apply again later on. But they don’t actually take your green card. Now, I have seen consulate officers do administrative processing and hold on to the passport and the green card and not return it for many, many months.

One of the clients that I’ve seen held onto their documents for over two years now. And so they didn’t cancel it per se, but holding on to it for a long time is almost as good as canceling it because there is an expiration on all these things, right? So that is a particular danger that you can face.

[7:23] The second danger is that the consular officer, once they deny the SB1, they put it in their system. If later on, the permanent residents try to fly to the U.S., the CBP officer at the airport will see that and might take that into consideration, even though they’re completely different agencies under different bodies of the government. They could say… take that into account, right? “Well, if I let them in and another agency denied them, that might look bad on me. So maybe I shouldn’t let them in.” So that’s the risk that you face, and that’s what the panelists were cautioning.

Now let’s go to the second option. If you don’t apply for the SB1 visa, then what should you do? The officers talk about chatting it with the CBP officers, meaning you just take your green card, you buy a ticket, you might get cancelled, you might be forced to buy a plane ticket and get returned and all these things, but you chance that. You take the gamble and you directly fly to the U.S. and face the officer, and that is a gamble that we’ve seen a lot of people do over this past year. They prepare their documents in hopes to explain everything to the CBP officer at the airport.

[8:00] Now let’s go to the second option. If you don’t apply for SB1 visa, then what should you do? The officers talk about chancing it with the CBP officers meaning you just take your green card, you buy a ticket, you might get cancelled. You might be forced to buy a plane ticket and get returned, and all these things, but you chance that. You take the gamble and you directly fly to the U.S. and face the officer. And that is a gamble that we’ve seen a lot of people do over this past year. They prepare their documents in hopes to explain everything to the CBP officer at the airport.

[8:33] Now this second option is not without its own risks. If you present your documents to a CBP officer at the airport, they can drag you into a secondary review, inspect your documents, and cancel your green card. So technically, when you’re doing an SB1 visa, they cannot take your green card, but at the CBP, they can. And so now you face that risk. The law technically puts the burden on you to prove that you did not abandon your green card because you’ve been outside of the U.S. for too long. With one agency, they cannot confiscate. With another, they can. But what should you do? And also, at the airport or at this border of entry, port of entry, you do not have legal representation. You don’t have the right to have an attorney present. You are in international territory; you don’t have that right.

[9:22] So the panelists, with all of their wisdom, advised with this tactic. Tell the CBP officer, “’Look, I understand I might not have enough documents to persuade you that the U.S. is my home. Can I go to deferred inspection, please?”

What is deferred inspection? Well, when you’re flying into the U.S., you are being inspected. And if proven that you have abandoned your green card, then they confiscate your green card and they force you to fly back or enter as a tourist. But that already gave up the game. So if you request for deferred inspection, what that means is, “Okay, well, I’m not inspecting you right now. Technically, you have not officially entered the U.S. I will let you in; I will hold on to your green card on your passport, and a week later or two weeks later, you come back at a deferred time, deferred inspection. And now prove your case, prove that the U.S. is your home.” 

[10:22] But what is good about this, right? What is the genius thing about this? Well, once you enter the U.S. and then you go to deferred inspection, now an attorney can be present and represent you at the deferred inspection. And you also have an extra week or two weeks to prepare all your documents to prove your case, right? So that’s the genius thing about deferred inspection. It gives you more time. We know you’ve traveled already 10 hours, 14 hours, some because of transfer flights; you’ve been traveling for three days, you’re exhausted. You’re not at the best point to explain why you’ve left and why the U.S. is your home and all of the reasons above. Maybe it’s midnight, and the officer is tired as well. You don’t want to be in a situation with two tired people trying to argue; it’s just good marital advice also, right? You don’t want to discuss anything that is complicated that might lead into a fight after 9 pm. You just know that that should be a firm family policy, do not discuss anything after 9:00 pm. Same thing with the CBP entries; if you are flying in after 9:00 pm, everybody’s tired, “Can I have a deferred inspection, please? Let’s postpone this discussion.” And that is totally permissible.

[11:35] The next big thing is the I-193 waiver. Now what is that? It’s a waiver for a travel document to enter the U.S. Now there’s a lot of confusion about this because people think, “Oh, if all I have to do is just pay for a filing fee and file the I-193, then I will be permitted the U.S. The U.S. just wants money.” That is not the case, okay? A lot of people think “All I have to do is file this form first, pay a fee, then I will be permitted to come back to the U.S. It’s a very transactional thing.” That is not true. You cannot file this before you enter the U.S. So you need to fly to the U.S., see the CBP officer, present your case, and if the CBP officer believes you and you lack the re-entry permit that’s required to be outside of the country, then they may permit you to file this form and pay the fee. It’s an honor. It’s a privilege. It’s a success if the officer tells you to file this form.

[12:38] Okay, so you cannot just pay for it and tell the officer, “Look, I paid for it, here’s my receipt, let me in.” You can’t do that. That’s.. They give you that privilege. So the idea is, you’ve been outside for over a year, technically you should have applied for a re-entry permit, but you didn’t because of the pandemic and all sorts of reasons, I understand. Okay, here’s the form, make this payment. Basically, it’s the filing fee for the re-entry permit. So instead of having a re-entry permit now, I’m making you pay for it now. That’s it, that’s the idea, okay?

Now we get to talk about boarding foils. That’s the new big thing. It’s the I-131A, it’s different than the re-entry permit, although in many languages, the re-entry permit and the boarding foil, it’s the same name. It’s super confusing, and it’s I-131 versus I-131A. We need better names, but the idea is you lost your green card overseas, and you need to get a document to show the airlines, to show the officer that you’re permitted to board, so you can get a boarding foil. That is relatively new in the world of immigration; that hasn’t been around for a long time. You pay for it in the U.S., and then you make an appointment with the consulate abroad, and then you go present your case, and the consulate gives you a boarding foil so that you could take it to board the plane.

[14:01] After the interview, typically, the boarding foils are only valid for 30 days, so you need to board the plane and fly to the U.S. Now, the trick is you need to pay for it within a year, but the scheduling of the appointment with the consulates doesn’t have to happen immediately. We’ve seen a lot of boarding foils where you pay for it right at the year mark, and then you don’t schedule the clients, don’t schedule the appointment until three months, four months later. And then after scheduling it… actually, after scheduling it, if the schedule was too quick, they postponed the appointment, and then after the appointment, they have another 30 days, and then they fly to the U.S. What that means is a lot of people have used the boarding foil instead of a re-entry permit and instead of paying for the waiver, the I-193 waiver.

[14:54] Now, what is important to know is that the boarding foil is not a replacement for the re-entry permit because it’s used for completely different purposes. The boarding foil allows you to get on the plane. You don’t have a green card to show that you can enter the U.S., so you show the boarding foil. But just because the plane allows you to get on and fly to the U.S. doesn’t mean the CBP officers would accept that boarding foil and let you in. You still need to prove that you have not abandoned your residence. If you didn’t apply for a re-entry permit, they might force you to pay for the waiver, which will be an honor, honestly. So just pay for it, come in, and now your green card is safe.

[15:38] And that’s it for this episode, but the panelists did talk a lot about other things as well, like very important things like how to get your citizenship even though you’re not in the U.S., the Form 470, and etc. Now if you’re interested in that, please go ahead and download it from AILA Agora or watch at AILA University or wherever you get your podcast. Hopefully, it will all become podcasts eventually; that’ll be so useful. But that’s it for this first session. Let’s jump to the next one. Take care. Bye-bye.