When lawful permanent residents seek to reenter the United States, they are actually applying for admission as special immigrants. This seems strange, given the fact that these aliens have already been lawfully admitted for permanent residence. However, this legal concept is necessary since every entering alien is considered an immigrant unless he or she can show entitlement to nonimmigrant status.
Returning residents are not subject to any numerical restrictions, are relieved of certain documentary requirements and may, in some cases, obtain a waiver of certain grounds of excludability. Nevertheless, resident aliens have no vested interest which assures them a right to return if they depart from the United States.
Requirements for Returning Residents
According to §101(a)(27)(A) of the Immigration and Nationality Act ("INA"), special immigrants are defined to include immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad.
The term "lawfully admitted for permanent residence" is defined at INA §101(a)(20) to mean the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. Clearly an alien who has abandoned his or her intention to remain a lawful permanent residence will not be entitled to reenter the United States as a special immigrant.
The second requirement in INA §101(a)(27)(A) is that the absence abroad be temporary. According to Gamero v. INS, 367 F.2d 123, 126 (9th Cir., 1966), the term "temporary'' varies in application, depending upon the facts and circumstances of each particular case. According to Matter of Huang, 19 I. & N. Dec. 749, 7 Immig. Rptr. B1-17 (BIA 1988), temporariness is not defined in terms of elapsed time alone; the intention of the alien, when it can be ascertained, will control.
Factors Considered When Determining The Alien's Intent
The Board of Immigration Appeals ("BIA") in Matter of Kane, 15 I. N. Dec. 258 (BIA 1975), subjective intent can sometimes be determined from examination of such elements as:
- Purpose for departing. The traveler should normally have a definite reason for proceeding abroad temporarily.
- Termination Date. The visit abroad should be expected to terminate within a period relatively short, fixed by some early event. If unforeseen circumstances cause an unavoidable delay in returning, the trip would retain its temporary character, so long as the alien continued to intend to return as soon as his original purpose was completed.
- Place of employment or actual home. The traveler must intend to return to the United States as a place of employment or business or as an actual home. He must possess the requisite intention to return at the time of departure, and must maintain it during the course of the visit.
In Matter of Quijencio, 15 I. & N. Dec. 95 (BIA 1974) the BIA also considered the location of alien's ties, such as family, job or property, as an aid in determining the alien's intent.
Many aliens acquire lawful permanent residence and soon after return to their home and employment in a foreign country, visiting the United States only briefly each year. However, simply using their Form I-551 (i.e. green card) each year for visits to the United States does not entitle aliens to retain their lawful resident status. For example, in Matter of Huang, the alien and her two children had resided in Japan except for brief annual visits to the U.S. to maintain permanent resident status. The BIA found that she had abandoned her lawful permanent residence since: (1) she had stayed with her sister-in law during her brief visits in spite of her ownership of a house in the U.S.; (2) she had never lived or worked in the U.S.; (3) her children had gone to school in Japan; (4) she had worked and bought a house in Japan; (5) there was no firm projected date for the family's return to the U.S.
According to Chavez-Ramirez v. INS, 792 F.2d 932, 937, 3 Immig. Rptr. A2-364 (9th Cir. 1986), a critical consideration is whether the evidence demonstrates that the alien had "a continuous, uninterrupted intention to return to the United States during the entirety of his or her visit." If the alien has no intention of returning at the time of departure, he or she cannot be considered temporarily absent. The alien also cannot be regarded as returning from a temporary absence if the intention to resume residence in the United States was abandoned during the absence abroad.
Burden of Proof
Under the INA, an applicant for admission must prove that he or she is not subject to exclusion under any provision of the INA, and that he or she is entitled to the status claimed. Such applicants for admission are normally not entitled to due process rights.
However, the Supreme Court in Kwong Hai Chew v. Colding, 344 U.S. 590, held that an alien who had previously been lawfully admitted for permanent residence, and who was seeking to make a reentry, was not in the position of a person seeking initial admission, but was to have his status assimilated to that of a resident alien who had not left the United States and was, therefore, entitled to due process of law and to a hearing. In Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C. Cir., 1958), the court carried the situation one step further, and declared that not only was the returning resident alien applying for admission entitled to a hearing, but he was entitled to a hearing at which the Government bore the burden of proof.
This does not mean that the returning alien does not have any obligation to prove admissibility. Without subtracting from the alien's burden of establishing returning resident status, once the person seeking admission has made out a prima facie showing of compliance with the statutory burden, the alien shall be admitted, unless the Government can show that he or she is no longer entitled to such status. At that point in the proceedings, if the Government seeks to deprive the alien of such status, it assumes the burden of going forward with its evidence. This was confirmed in Matter of Kane.
In Matter of Huang, the BIA indicated that, in exclusion cases where the alien has a colorable claim to returning resident status, the burden of proof is on the INS to show by clear, unequivocal, and convincing evidence that he or she should be deprived of his status as a lawful permanent resident. The Supreme Court of the United States had previously found in Woodby v. Immigration and Naturalization Service, 385 U.S. 276 (1966), that the clear, unequivocal, and convincing standard applied to deportation cases involving resident aliens. The BIA in Matter of Huang recognized that an applicant for admission who has a colorable claim to returning resident status may often have as much at stake in retaining her lawful permanent resident status as an alien in deportation proceedings.
Documentation Requirements for Returning Residents
Apart from the issue of abandonment, returning residents must also comply with INA §212(a)(7)(A)(i) which requires any immigrant to present a valid unexpired immigrant visa or other valid entry document at the time of application for admission. A returning resident's Form I-551 (i.e. green card) is a sufficient entry document for the purpose of INA §212(a)(7)(A)(i) for absences of one year or less. However, after an absence of more than one year, the returning resident must be in possession of a reentry permit or an immigrant visa issued by a U.S. consulate located abroad.
A departing alien who plans on being absence for a significant period of time may apply for a reentry permit. In addition to serving as a valid entry document after absences of more than one year, reentry permits provide evidence of the alien's intent. In Matter of V, 4 I. & N. Dec. 143 (BIA 1950) the BIA stated that a reentry permit provides at least prima facie evidence that the alien was lawfully admitted for permanent residence and, absent fraud or misrepresentation, establishes that the holder is returning from a temporary visit abroad. However, a reentry permit does not guarantee readmission to the United States.
In order to qualify for a returning resident permit, the alien must establish that:
Reentry permits are valid for not more than two years from the date of issuance and are not renewable. The INA makes it clear that the issuance of a reentry permit is at the discretion of the Attorney General.
- he or she has been lawfully admitted to the United States for permanent residence;
- such residence has not been abandoned;
- the application is made in good faith, and
- the alien's proposed departure from the United States would not be contrary to the interests of the United States
An applicant for a reentry permit must submit a sworn written application to the INS office having jurisdiction over the alien's U.S. residence. Although the statute does not specify that the applicant must be in the United States at the time the application is filed, such presence seems contemplated.