By: David E. Gluckman, EsqIt happens all the time. Your clients are planning an international dream vacation or an exciting change of jobs. But their green cards are expiring! Do they have to cancel everything? Probably not, but the laws and procedures that apply in these situations are not as clear as one would hope. This article will empower practitioners with all the information needed to guide clients through this potential morass.
This article is divided into two sections to address two groups of permanent residents: those who have filed to remove the conditions on a “conditional” two-year green card, and those who have a “permanent” 10-year green card.
Conditional Residents
The Immigration Service (“USCIS”) issues two-year “conditional” green cards to two categories of permanent residents: (1) those who received permanent residence on the basis of marriage to a U.S. citizen, when the marriage occurred less than two years before the green-card approval[1]and (2) those who received permanent residence under the EB-5 “employment creation” program.[2] Each requires a different filing with USCIS: an I-751 for marriage-based conditional residents and an I-829 for “employment creation” conditional residents.[3] USCIS must receive the I-751 or I-829 no earlier than 90 days before the green-card expiration date,[4] and no later than the date the card expires. The failure to file on time results in automatic termination of permanent residence.[5]
Once the I-751 or I-829 has been filed, the processing is anything but instantaneous. In fact, USCIS can take many months to make a decision. During this time, your client’s green card will have expired! Is it panic-button time? No.
Although the I-751 and I-829 are very different filings, the rules for how permanent residents will be treated after making these filings are almost identical. As long as the I-751 or I-829 was filed on time, their status as permanent residents is automatically extended until USCIS makes a decision on the petition.[6] USCIS will send a receipt informing them that their status has been extended for one year, but this is not the case—their status is extended until they get that final decision. And in the event the I-751 or I-829 is—gasp—denied and they are placed in removal proceedings, they are still considered permanent residents entitled to documentation of their status until a final removal order is entered by an Immigration Judge.[7]
Clients frequently ask whether they can make an international trip after filing. Generally, the answer is “yes.” But they may need to take additional steps depending on timing. The key is when they plan to reenter the U.S.—not when they plan to leave.
If they will be reentering the U.S. within 6 months of the date USCIS receives the I-751 or I-829 filing, they will reenter the U.S. by showing their expired green card and a copy of the I-751 or I-829 receipt notice.[8]
If they will be reentering the U.S. more than 6 months after the date on their I-751 or I-829 receipt, it is risky to rely on the expired green card and the receipt notice. This is true even though the receipt notice claims to authorize travel up to a year after the filing date.[9] To eliminate any reentry risk from these trips, they should get formal proof of their status from their local USCIS office in the form of a “green-card stamp” in their passports. To get one of these stamps, they would make an InfoPass appointment with their local office through the USCIS website (https://infopass.uscis.gov/). They would bring their expired (or expiring) green card, the I-751 or I-829 receipt notice, and proof of their travel plans. They are automatically entitled to the green-card stamp, which will be valid for 12 months.[10] This is the same process they would use to obtain continued proof of their permanent residence if they have been placed in removal proceedings following denial of the I-751 or I-829.
In any event, you must advise clients to avoid any trip outside the U.S. of 6 months or more without obtaining a reentry permit. While not a panacea, the reentry permit will be an important document to defend against charges that your clients may have abandoned their permanent residence due to a long absence. Extended absences also impact naturalization eligibility,[11] so this will be something else to discuss.
What about when your clients ask about their exciting new job offer? Thankfully, they shouldn’t have to put that on hold, either. If the green card has already expired, their best option would be to obtain a temporary green-card stamp from the local USCIS office, as mentioned above. While there is guidance from USCIS indicating that the I-751 or I-829 receipt notice may be acceptable proof of employment authorization,[12] this guidance is not well known and appears to conflict with other regulations.[13]
Unconditional Permanent Residents
Unconditional permanent residents have green cards valid for 10 years at a time. To be clear: the expiration date on the green card is not the expiration date of a particular client’s permanent residence—it is just the expiration date of the proof of that client’s permanent residence.[14] That is because a permanent resident will remain a permanent resident until he or she voluntarily relinquishes the green card, becomes subject to a final order of removal, or becomes a U.S. citizen.[15]
To obtain continuing proof of permanent residence, your clients would apply for a replacement green card by filing a Form I-90 with USCIS. Like I-751s and I-829s, USCIS customarily takes many months to process I-90s.[16] But unlike I-751s and I-829s, the I-90 receipt notice will not serve as proof of their status.
So what does this mean? It means that your clients will need to get a temporary green-card stamp in their passports if they want to travel outside the U.S. or change jobs while USCIS processes their I-90 applications (unless, of course, they can still use the original green card because it has not yet expired).[17] Again, be sure to counsel clients on reentry permits, abandonment, and potential naturalization consequences if they intend to be outside the U.S. for a single period of 6 months or more.
To obtain a temporary green-card stamp, your clients will first need to file an I-90 application (which can be done electronically or on paper).[18] Then they will need to make an InfoPass appointment with their local USCIS office through the USCIS website (https://infopass.uscis.gov/) and bring the expired card and the I-90 receipt to the appointment. They should automatically be issued a stamp valid for 12 months.[19]
Even if there are no plans to change jobs or to travel internationally, there are good reasons to advise clients to file for a replacement green card.[20] First, permanent residents are required by law to carry with them evidence of their permanent-resident status.[21] An expired card may not be sufficient. Secondly, permanent residents cannot apply for naturalization (U.S. citizenship) with an expired card.[22] In fact, they must apply for a replacement card if it will expire less than 6 months before they submit their naturalization application.[23]
Conclusion
As any immigration attorney can commiserate, processes and procedures in our field are almost always more important than the law itself. Dealing with expiring green cards is no exception. Making your clients aware of these processes and procedures will help them to keep calm and carry on, dream vacations and all.
Read the full article in Immigration Daily.
[1] INA § 216(a)(1) & (g)(1).
[2] Id. § 216A(a)(1) & (f)(1).
[3] The mechanics and complexities of filing these petitions are beyond the scope of this article.
[4] But see 8 C.F.R. § 216.5(a); USCIS, Instructions for Pet. Remove Conditions on Residence, http://www.uscis.gov/sites/default/files/files/form/i-751instr.pdf (last visited Apr. 10, 2014) (allowing filing before the 90-day window for marriage-based conditional residents who seek a waiver of the requirement to file the I-751 jointly with the U.S.-citizen spouse).
[5] Id. § 216.4(a)(6) (failure to file I-751); id. § 216.6(a)(5) (failure to file I-829). There are some exceptions for filing late, but this is definitely a risk avoid if at all possible. See, e.g., id. §§ 216.4(a)(6) & 216.6(a)(5) (allowing a late filing if “good cause” is shown); id. § 216.5(a)(1) (permitting late filing for marriage-based conditional residents who are seeking a waiver of the requirement to file the I-751 jointly with the U.S.-citizen spouse).
[6] Id. § 216.4(a)(1) (I-751); id. § 216.6(a)(1) (I-829).
[7] See Questions and Answers: USCIS Field Opers. Directorate—American Immigration Lawyers Ass’n (AILA) Mtg., at 3 (Oct. 25, 2011), available at AILA InfoNet Doc. No. 12011061 (“If the I-829 or I-751 has been denied and an NTA [Notice to Appear] has been issued, but no final order of removal has been entered, then USCIS should follow established procedures for providing a temporary I-551 [green-card] stamp as evidence of the alien’s conditional resident status upon request at a local USCIS Field Office. The alien is eligible for temporary I-551 stamps until an Immigration Judge makes a final decision on the case.”).
[8] 8 C.F.R. § 211.1(a)(5).
[9] This language on the receipt notice appears to conflict with the regulation at 8 C.F.R. § 211.1(a)(5), which permits reentry with an expired green card “accompanied by a filing receipt issued within the previous 6 months for either a Form I-751 . . . or Form I-829, . . . if seeking admission or readmission after a temporary absence of less than 1 year.”
[10] See Memorandum from William R. Yates, Acting Assoc. Dir. Opers., BCIS, to Interim Reg. Dirs., at 2 (Dec. 2, 2003), available at AILA InfoNet Doc. No. 03120940.
[11] See, e.g., 8 C.F.R. § 316.5(c)(1) (addressing how extended absences could break the period of continuous U.S. residence required for naturalization).
[12] See USCIS, I-9 Central Questions and Answers, http://www.uscis.gov/i-9-central/i-9-central-questions-answers/faq/may-i-accept-expired-document-form-i-9 (last visited Apr. 9, 2014) (“[Y]ou may accept an expired Permanent Resident Card (Form I-551) along with a Form I-797, Notice of Action, that indicates that the card is valid for an additional year, which is an acceptable List C evidence of employment authorization for one year as indicated on Form I-797.”).
[13] See 8 C.F.R. § 274a.2(b)(1)(vi) (listing the only circumstances when a receipt will be acceptable evidence of employment authorization, which do not include I-751 or I-829 receipts).
[14] Memorandum from Michael A. Pearson, Exec. Assoc. Comm’r, INS, to Reg Dirs. 2 (Sep. 29, 1999), available at AILA InfoNet Doc. No. 99100640 (“Although lawful permanent resident status is not affected by the expiration of the Form I-551 [green card], individuals will need to replace their cards to have valid evidence of their status and registration.”) [hereinafter Pearson Memo].
[15] See 8 C.F.R. § 1.1(p).
[16] USCIS’ current processing times for all applications and petitions are available at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
[17] Many USCIS Application Support Centers will affix a sticker to an expiring or expired green card when the client attends the I-90 biometrics appointment. This sticker will extend the validity of the green card (typically for a period of 6 months), making it unnecessary to obtain a temporary green-card stamp for as long as the sticker is valid.
[18] USCIS, I-90, Application to Replace Permanent Resident Card, http://www.uscis.gov/i-90 (last visited Apr. 9, 2014).
[19] Pearson Memo, supra note 14, at 2-3.
[20] At the same time, there is a good reason to advise clients not to file a Form I-90 if they have been convicted of certain crimes. That is because I-90 applicants must undergo biometrics (fingerprints and photos) as part of I-90 processing, and this may bring their criminal history to the attention of the immigration authorities.
[21] INA § 264(e).
[22] Pearson Memo, supra note 14, at 3.
[23] Id.
