Returning as a Resident During Covid-19 Global trends and procedures for the U.S.

U.S. Customs and Border Protection Officer
www.cbp.gov

With Covid-19 vaccinations rolling out, and additional precautionary procedures such as pre-arrival Covid-19 test standardizing across world, the prospect of jumping on a flight may feel not only safer, but may be more readily available and affordable.  Now may be the time to travel from where you are, back to where you are a resident (but where you are not yet a citizen). If you have been in the category of people struck aboard unable to travel as a result of Covid-19, there may be some additional considerations for your return.

For countries like Australia, you may return at any time as a permanent resident if your residency has not expired. But for most other countries, there is a limit to how long you can remain abroad even if your residency is a permanent one.

Some countries have expressly communicated their Covid-19 returning-resident policy for how long residents may reside outside their home countries without legally abandoning it. For instance, the Government of Kuwait has announced a limit of one year. South Korea requires you to get a re-entry permit if you plan on remaining outside of South Korea for over a year during the Covid-19 pandemic. However, many countries remained silent on the impact of Covid-19 on their resident’s right of return. 

Generally, if you are living temporarily the EU for work or study, and do not have permanent residency, the permitted absence is a total of six months in a 12-month period. This can be extended to “one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” Whether or not Covid-19 restriction qualifies is a case-by-case determination, so you must present supporting evidence to get the extension. Evidence may include border closure information, local policies on non-essential travel, a denial of right to return, Covid-19 illnesses, office closures, etc. When in doubt, contact the nearest consulate of the country where you intend to return to seek guidance. 

For other countries, the one-year absence is already the legal limit even without making a formal request.  For Japan, you do not need to apply for permission for extension of stay or for re-entry from abroad unless your stay exceeds one year. Like Japan, the U.S.’s legal limit for its permanent residents is up to one year; anytime over one near means the resident has legally abandoned it.  

While the U.S. has not issued a new formal policy guidance during Covid-19 for returning residents who have remained abroad for over a year, the general guidance from U.S. embassies (such as Peru and Turkmenistan) is to obtain a SB-1 Returning Residents visa prior to re-entry. This is also the rule prior to the pandemic. In this pandemic, getting the SB-1 visa is easier in guidance than in practice, due to the closures of many U.S. embassies and consulates globally to routine visa services.  So, what to do if you find yourself abroad for over a year and must return and cannot obtain an SB-1 visa due to consulate closures?

It has been our experience that U.S. Customs Border Protection will consider your period of absence and return on a case-by-case basis, depending on the country from which you returned, the unique personal circumstance of your stay abroad, and the general proclivity of the specific officer with whom you interact.  Consider gathering all the evidence to support your reasonable, yet long-absence from the U.S.  Why did you leave and what evidence do you have to support that? Why did you remain abroad for so long? Did you have a family member to take care of? Did your work require you to stay? Why did you not return on a repatriation flight? And are the embassies or consulates open for you to get an SB-1 visa prior to your return? 

Preparing yourself mentally for these types of questions will better position you for your interview with the customs officer, and may persuade he or she to exercise discretion to re-instate your residency.  It remains the discretion of each officer to reinstate you, even if you have been abroad for well over a year. If he or she decides to reinstate you, expect some paperwork and filing fees. Safe travels!!

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