It will cost US visa seekers dearly to fulfil their American Dreams in the near future, as USCIS’ proposed visa fee hikes are likely to be effective in early 2024 for H1B, L, O, and EB5 categories. The visa fee hike proposal will also impact applicants seeking employment authorization, US citizenship, and green card status adjustment. Only the USCIS fees for premium processing of visas in all categories will remain unaffected; however, the premium processing timeline will increase from 15 calendar days to 15 business days as proposed by USCIS.

EB5 – the Golden Visa that ensures the fastest route to earning a Green Card – will cost foreign investors and entrepreneurs 204 times more than its current fees. Once USCIS’ visa fee hike proposal is approved, an EB5 visa will cost $11,160 instead of $3,675. This will surely be another setback to EB5 visa seekers, since the investment cap has been raised from $500,000 to a minimum $800,000.

The proposed H1B visa fee hike is, undoubtedly, not a fair surprise to H1B visa sponsors. The US employers hiring high-skilled foreign workers will have to shell out $780, a 70% hike on $460 per application. Moreover, the H1B pre-registration fee is to get a steep hike by 2050% – from a meagre $10 to a whopping $215. The US Citizenship and Immigration Services (USCIS) agency reasons that they sought a significant hike in the H1B pre-registration fee based on a review of the increasing cost of managing the H1B registration system.

In its US visa fee hike proposal, USCIS sought a 201% increase from $460 to $1385 for an L1 visa, a non-immigrant visa for intra-company transfer. The O1 visa fee is likely to go up by 129%. O1, a visa for non-immigrant individuals with extraordinary ability or achievements, is one of the few options that highly-accomplished STEM professionals on H1B can switch to during the 60-day grace period following a layoff. They may find this option a deterrent in the event of the O1 visa fee increase.

Justifying the H1B, EB5, L1 and other visa fee hikes, USCIS said that the revision of the current visa fee schedule is a pressing need of the hour to meet the agency’s operating overheads, especially in view of the pandemic-hit revenue. The agency’s revenue plummeted by 40% during the pandemic – which resulted in freezing the hiring process and reducing the workforce, thereby affecting the capacity to clear backlogs. USCIS’ annual revenue is expected to rise from $3.28 billion to $5.2 billion if the latest revision of the visa fees is approved. The estimated revenue increase will help USCIS prevent the mounting of visa backlogs, upgrade the technological infrastructure, and augment the legal immigration system.

USCIS also proposed eliminating separate biometric services fee. At the same time, USCIS assured that the visa hike proposal would not impact the existing fee waiver eligibility norms for low-income groups. The agency also sought to introduce fee exemptions for visa applicants in the ‘humanitarian programs’ category.

The US visa hike proposal includes plans to introduce a new ‘Asylum Program Fee’ which will be levied on the employers filing Form I-129 (a petition for non-immigrant workers) and Form I-140 (a petition for employment-based LPR) for their foreign employees. The Asylum Program Fee, $600, will help the agency afford the expenses of administering the asylum programs.

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Nearly 7.19 lakh Indians are awaiting their employment-based green cards as of September 2021, noted a study published by the Cato Institute. Shockingly, the wait time is estimated to be 90 years (more than the average lifespan of a person!) if no measures are taken to address bureaucratic delays in green card issuance. 

These figures underline the necessity of reforms in the US immigration system, which unfortunately is keeping skilled immigrants away from the jobs needing them. Meanwhile, data also reveals that 2,30,000+ green cards under family and employment categories were unused in the period between 1992 and 2022. So, in an attempt to clear the long-pending green card backlog, the US President’s Advisory Commission has given its green signal to the proposal that unused green cards be recaptured. This move is expected to provide relief to over 1.4 million immigrants, who have been waiting for their green cards for years.

Picture Credit: Fileright.com

Why is this Green Card Recapture Recommended?

The US has a limit on annual green card issuance to immigrants. (A Green Card or Permanent Resident Card is an official document granting its bearer the permission to reside and work in the US permanently). This limit is set at 1,40,000 for employment-based green cards and 2,26,000 for family-sponsored green cards. Further, there is a 7% country-based quota system for these categories, which doesn’t take into account either the country’s population or the demand for green cards from them. So, the US doesn’t process more than 25,620 family and employment-based green cards annually to immigrants of a particular country despite receiving a high volume of applications, which only keeps increasing year after year. This led to accumulation of green card petitions, especially from countries like India and China.

Indian-American entrepreneur, Ajay Bhutoria, also a member of the President’s Advisory Commission on Asian Americans, Native Hawaiian and Pacific Islanders, recommended the recapture of the green cards that have remained unissued due to administrative complexities and delays. Reallocating these lost opportunities to those waiting in hope can help unburden the government by facilitating the clearance of some backlogged applications every year in addition to processing the annual limit of green cards for these categories. 

What does Recapture of Unused Green Cards Mean to Indian Immigrants Affected by Green Card Backlog?

As is well-known, a vast number of Indians fly to USA every year in pursuit of their American Dream. Most of them are usually H1B visa holders with ambitions to settle permanently in the US. Their applications for an employment-based green card are likely to get stuck in the mire of backlogs created by the per-country quota system. Situations turned so hopeless in the past for certain immigrants including Dr. Pranav Singh, who took a flight back to India being fed up with the long green card wait period.

Data suggests that the US issues around 7000 to 9000 employment-based green cards to Indians annually. If the dependents of primary applicants are excluded, then approximately 2000 H1B visa holders from India get green cards while the number of H1B work visas issued every year is close to 85,000. Even if we assume that only one fourth of them apply for a green card in a particular year, much less than one fourth of the total applicants would receive it and the rest would slip into the mounting backlog. 

The excruciatingly long wait time for Indians to get green cards is a result of this widening gap between the number of applications received and the country-based cap on green card issuance. Under these circumstances, recapture of green cards unused over the years can prove to be beneficial to thousands of Indian immigrants waiting to get their hands on the most-coveted green cards.

Although the green card recapture recommendation has been approved at the White House, it doesn’t take effect until it gets a Congressional nod. So, it remains to be seen how long it takes for this bill to translate into action. Hope the recommendation for recapture of unused green cards won’t meet the fate of the RELIEF Act that sought to keep immigrant families together and the failure of the EAGLE Act that sought to phase out the per-country limit on the issuance of employment-based green cards to Indians.

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The way the US Citizenship and Immigration Services (USCIS) is working to reduce visa wait times in India and upgrade the security features of Green Cards, it seems that the federal agency has regained its pre-pandemic tempo. Recently, USCIS announced details of the security upgrade to Green Card and EAD redesigns. Reportedly, the redesigned cards started to be issued starting January 30, 2023.

PC: Freepick.com

The new Green Card design and the redesign of Employment Authorization Documents are secured against counterfeiting with state-of-the-art technology. Redesigned last in May 2017, the cards need a new design with enhanced security features every three to five years in a bid to mitigate fraud and safeguard national integrity. The 2023 redesign of Permanent Resident cards and EADs substantiates USCIS’ delivery of its commitment towards maintaining top security standards through consistent updates.

The front of the redesigned Green Card displays updated artwork for the Statue of Liberty and features new tactile printing that is better integrated with the artwork. The cardholder’s fingerprint is no longer on the front of the card in the new design. Data fields are displayed in different places on the front than in the previous designs. The front and back of the new Green Card design have highly secure holographic images with optically enhanced variable ink. Furthermore, the security upgrades of Green Card redesign 2023 include a layer reveal feature with a partial window on the back photo.

USCIS made it clear that the launch of the new designs does not render the existing cards invalid. Rather, the cards in use will continue to be valid until their expiration date. Some Permanent Resident cards and EADs, though issued after the redesign launch on January 30, may have the old design as USCIS continues to use the existing cardstock and supplies until they are used up. Both designs of the cards – the old and the new – will be accepted for Form I-9 (Employment Eligibility Verification), E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some Green Cards with the old design do not have an expiration date. Those cards are also valid for use. USCIS recommends lawful permanent residents (LPRs) should consider applying for the new version, as their cards have risks of being tempered or counterfeited if lost or stolen. Green Card and EAD redesign is part of the Secure Identification Platform project.

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Non-immigrant visa holders felt the ordeal of being stuck in the green card backlog intensely during the pandemic, as their entry to the US was heavily restricted by President Biden’s proclamations curbing the import of COVID-19 cases from the affected countries. Consequently, thousands of H1B, H4, L1 and other non-immigrant visa holders were stranded in India, and many of them were separated from their families in the United States. They bore the brunt of long wait times for green cards. If they had got the magic wand (Green Card0, they would have spread a magic mat in the air and travelled to the US flying past all the restrictions.

In a recent development of attempts at phasing out per-country limits on issuance of employment-based green cards, two Senators – Kevin Cramer and John Hickenlooper – introduced a new version of the EAGLE Act 2021. Cleared by the US House Judiciary Committee in April this year, the legislation is now titled EAGLE Act 2022.

Picture Credit: YesPunjab.com

Amid a row over the pandemic-induced travel ban on India in 2021, Congresswoman Zoe Lofgren and Republican John Curtis had brought a bipartisan legislation onto the table. The Equal Access to Green cards for Legal Employment Act (HR 3648 EAGLE Act 2021) was aimed at removing the obstacles that are responsible for the mounting backlog of green card applications. Needless to say the obstacles include the fixed 7% country-wise limit on the allocation of employment-based green cards. The HR 3648 EAGLE Act 2021 also addressed the need to raise the per-country cap on issuance of family-based green cards to 15%.

Not the country of origin but skills should be the basis of hiring foreign workers and issuing green cards to them – is the basic premise of the Equal Access to Green cards for Legal Employment Act. Over the years, the US Congress saw several bills seeking phasing out of the per-country cap in order to ensure fair allocation of employment-based green cards. But, none of the bills made a cut. The last bill was the Fairness for High-Skilled Immigrants Act (HR 1044, S386) that gained momentum when Donald Trump’s days were numbered at the White House.

The final version of the combined HR 1044, S386 served as the foundation of the newly introduced bill, HR 3648 EAGLE Act 2021. President Biden’s US Citizenship Act of 2021, which promised a lot to those stuck in the green card logjam, has not yet clicked with the Senate since it was introduced within a few days of Biden’s swearing in to the presidential office. Hence, John Curtis and Zoe Lofgren’s ‘Equal Access to Green cards for Legal Employment Act’ was another big attempt at removing per-country caps on green card allocation.

The HR 3648 EAGLE Act 2021 was vocal about certain advantages to the US economy that fair allocation of employment-based green cards would have ensured. “The basic framework for allocating immigrant visas dates back to the middle of the 20th century and was last seriously updated in 1990,” Congresswoman Lofgren said. “The effect of the per-country caps is that countries with small populations are allocated the same number of immigrant visas as that to skilled labor from a relatively large-population country,” she further said.

“The bipartisan act, if signed into a law, will lead America towards a system that de-emphasizes birthplace and better serves the nation and its economy,” Zoe Lofgren opined while explaining the benefits of the EAGLE Act 2021.

The bill requires the Department of Labor (DOL) to set up a ‘Searchable Internet Website’ where all H1B jobs will be posted for unrestricted public viewing. The website should come up within 180 days from the signing of the bill into a law. The jobs posted on the website will remain live for 30 days from the day of posting and must have such details as education, experience and training required; salary details; employment location and benefits; and application process. Each H1B job post should have a title, a description and occupational classification.

The bill will enable American employers to focus on roping in the best talent from overseas and building great products that will create employment in the country and strengthen the local economy, according to Republican John Curtis.

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A presidential advisory commission has made certain recommendations, through unanimous voting, for the Biden administration to clear the existing green card backlog within 6 months. If the recommendations, if adopted through an executive order to reduce the green card wait times to six months, will be the best boon that hundreds of thousands of Indians have been waiting for decades.

The President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders (PACAANHPI) will soon send the recommendations to the White House for approval. The PACAANHPI meeting saw one of the proposals regarding the need to reduce the green card processing time moved by Ajay Jain Bhutoria, a noted Indian American community leader.

One of the recommendations made by the Presidential Advisory Commission is to speed up the processing of family based green card applications by streamlining the internal process within 6 months once President Biden approves and implements the recommendations through an executive order. The National Visa Center (NVC) is recommended to accelerate the hiring of additional officers and overhaul the operational capacity in order for green card interviews to be held by 100% in 3 months starting from August 2022.

This Indian family falls apart over green card limbo  

Some of the recommendations are those for the US Citizenship and Immigration Services to upgrade the systems, revise the policies, automate manual approvals, update the dashboards, remove redundant phases, correct the internal time cycle and review the policies, so that the existing green card logjam can be reduced by more than half of it. Only 65,452 – one fourth of the annual 2,26,000 green cards available in the family-based category, were issued in fiscal 2021. If the recommendations are adopted, the permanent waste of family-based green cards can be prevented to keep immigrant families united.

Once the backlog is cleared, the processing timeline for fresh green card applications should not exceed 6 months. It will do good to more than 8 lakh Indian immigrants who hopefully won’t meet the fate of this eminent Indian doctor who left USA for India after 15 years of disappointment over the green card fiasco.

There are other recommendations that require the USCIS to review requests for scrutiny of work permits, travel documents, and visa status extensions or changes within 3 months, so that non-citizen immigrants find it easier to continue to stay and work in the United States. Providing automatic work permit renewals to H4 visa holders and expanding the premium processing service to other visa categories in addition to H1B are among other recommendations by the advisory commission.

Early this month, the USCIS increased the automatic extension of work permits for non-citizen immigrants, including spouses of H1B visa holders. If it has been 180 days since your work permit expired, you can continue to be working for additional 12 months. The 540-day extension of work permits came into effect on May 4, 2022. This not only provides a relief to those whose employment authorization renewal applications are facing delays due to a huge backlog, but also saves employers from facing a talent crunch.

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After one year of having assumed presidential responsibilities, Joe Biden is all set to put the Trump-era public charge rule on a reverse gear. Introduced in the Trump regime of immigration-related uncertainties, the hardline public charge rule curbed immigrants’ claim to permanent residency on grounds of limited self-sufficiency. Since the 1800s, there has been a law that foreign nationals are inadmissible to the country and immigrants are ineligible for green cards if they lack self-sufficiency, or if they are likely to become a ‘public charge’ (economic burden on the country). The Trump administration defined ‘self-sufficiency’ as a fundamental criterion for individuals seeking entry to the US, noncitizens seeking legal permanent residency, and non-immigrant visa holders seeking extension of stay in the US.

On February 17, President Biden proposed new regulations to soften the ‘public charge’ definition and limit public charge determinations, as the Department of Homeland Security’s Secretary Alejandro Mayorkas made it clear that the 2019 public charge rule is not consistent with the United States’ constitutional values. He said, “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”

The Trump administration defended the public charge rule by arguing that it would help non-immigrants and certain immigrant groups become self-sufficient in the best interests of the US economy. The then Secretary of DHS, Kirstjen Nielsen said, “Those planning to immigrate to the United States must establish their ability to meet their housing and healthcare needs and other requirements, relying on their own capabilities and resources as long as they will be staying here.” However, humanitarians, civil rights activists and Democrats condemned the 2019 public charge rule as a deliberate act of discrimination against low-income immigrants.

The Trump-era public charge rule, if enforced, would have affected mostly the green card seekers who entered the US through family-based immigration. Furthermore, H4 visa holders would have been required to prove their self-sufficiency despite having no work authorization. The breakup of many immigrant families would have been the worst repercussion of the public charge rule.

Joe Biden’s proposal, which will soon be open to public comments, seeks to provide ‘fair and humane treatment’ to noncitizens by redefining “likely at any time to become a public charge” as “likely to become primarily dependent on the government for subsistence.” Biden’s version of the public charge rule will not consider those receiving noncash benefits, among the federal aid programs, as a ‘public charge’. The federal government’s noncash benefits include the Children’s Health Insurance Program, Medicaid, the Supplemental Nutrition Assistance Program, housing and transportation vouchers.

The new public charge rule will also not include Social Security, pandemic assistance, government pension, disaster aid received under the Stafford Act, and benefits in the form of tax credit or deduction. Some categories of non-citizens, including refugees, asylees, special immigration juveniles, temporary protected status (TPS) applicants, and petitioners under the Violence Against Women Act will be exempt even from the new public charge rule.

However, the Department of Homeland Security will continue to consider certain federal benefits as public charge inadmissibility determinations. These benefits are Supplemental Security Income (SSI), Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF), program, and long-term institutionalization at government expense.

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If the United States’ Budget Reconciliation Bill becomes a law, applying for an H1B visa will be a costly affair. It will help silence the critics of H1B visa holders and shatter the myth that this nonimmigrant visa pools cheap labor from foreign markets into America. Transiting into H1B status from an F1 visa or getting an H1B visa petition directly approved is a crucial passage into the US – the cradle of American Dream – for many skilled Indians in STEM, according to the US immigration system. The House Reconciliation Bill, if approved, will cost employers more than before for the filing of H1B petitions.

The latest version of the bill has proposed a supplemental fee of $500 on top of the current fees for an H1B petition. This is just one of the proposed additional fees for various immigration related petitions. The Budget Reconciliation Bill seeks to increase the existing fee for employment-based permanent residency by an additional $800 and the existing fee for a family-based Green Card (Form I-130) by $100.

Spouses of certain non-immigrants seeking employment authorization, and foreign students seeking OPT will have to pay an additional fee of $500 as proposed in the bill. A supplemental fee of the same amount will be levied on an application for adjustment of status. An application to change or extend nonimmigrant status (Form I-539) will cost more $500. The House Reconciliation Bill in its current form requires you to pay more $500 for applying to renew an expired or about-to-expire Green Card.

The bill requires educational institutes to pay a supplemental fee of $250 for each F1 and M1 visa. The same supplementary amount is proposed for a J-1 exchange visa.

Given the analysis of government and attorney fees by the National Foundation of American Policy, filing an H1B visa petition for the first three years or an extension for an additional three years will cost a company not less than $31,800 including the proposed fee increase. Below is a breakup of the cost to be incurred upon approval of the Budget Reconciliation bill:

• Application fee: $460
• Proposed additional fee: $500
• Attorney fees: $1500 to $4000
• Added attorney fees for a Request for Evidence: $2000 to $4500
• Scholarship and training fee: $1500 ($750 for a company with 25 or fewer employees
• Anti-fraud fee: $500 (on initial petition)
• Premium Processing (optional): $2500
• “50/50” fee (for a company with workforce over 50% H1B/L1): $4000 (on initial petition)
• Visa application (based on reciprocity): $190 ($0 – $800)

(The data source: National Foundation of American Policy)

Though the proposed fee increases will largely impact small businesses, it discards the prevailing myth that US employers import foreign talent on H1B as cheap labor. On the contrary, conglomerates are willing to pay additional fees for skilled foreign workers, according to immigration attorneys. H1B workers in STEM professions earn more than their American counterparts having the same profile, according to economists from the Public Policy Institute of California.

President Biden’s budget reconciliation bill calls for a $100 billion investment to introduce reform measures in the US immigration system and clear Green Card backlogs. If the proposed additional fee increases are approved, it will help expedite the LPR process for hundreds of thousands of Indians stuck in the Green card limbo. This would be the most significant immigration reform to be credited to the Biden administration. Unlike Dr. Pranav Singh, no H1B workers will have to give up on the American Dream due to sheer frustration over the inordinate delay in the green card processing.

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Dr. Pranav Singh, an Indian Pulmonologist from Iowa, took a flight back to India from USA before the interminable green card backlog would have decided his fate. Fed up of the waiting period for legal permanent residency, he decided to go back to his roots in India after having called the US his home for 15 years. After the air bubble corridors were formed to bridge the travel gap between countries amid the raging pandemic, he took the drastic step of leaving the land of “American Dream” forever.

While hundreds of thousands of H1B professionals have been waiting for legal permanent residency, he got tired of waiting for the green card – which he describes as ‘indentured servitude’. He came to the United States in 2006 and did his medical residency in New York before he settled as a pulmonary critical care physician in Mason City, Iowa. His green card priority date was December 2013, since then he had been renewing the H1B visa. While the decision to leave the US was not easy for him, this phase of transition is a lot more difficult for his daughter, 16, who has been brought up in the US.

Needless to say, dependent children of Indian professionals on H1B visa age out of the green card process the day they turn 21. “If my daughter ages out, she has to self deport to India. Then she has to get an F-1 visa to re-enter the US. She will be at the mercy of the visa officer after living in the US all her life. In order to apply for a US visa she has to prove that she has no intent to immigrate. How is she going to do that? We will be happy to send her to any country for her studies but it will never be the US,” Dr. Pranav Singh said with a heavy heart.

It has been 10 months since Joe Biden and Kamala Harris were sworn in to the office at White House, but the mounting of the green card backlog has not been curbed. The Indian H1B community pinned their hopes for legal permanent residency on the new administration at the US Capitol. At times, some bills, like RELIEF Act and EAGLE Act, were introduced as mere consolations for Indians on H1B visa, who have been awaiting the proposed elimination of country-wise limits on allocation of green cards, but nothing has yet come to fruition. “There is no political will to fix the problem. That’s why I left the country after a few months of the pandemic,” said Dr. Singh.

It would have taken Dr. Pranav Singh another 10 years to obtain legal permanent residency if he had continued to stay in the US, but his daughter would have been aged out and deported from the US. The pain of moving back to India is much lesser than that of being deported from the US.

In the first few months of the pandemic in the US, he took care of COVID-19 patients risking his own life. If something happened to him or if he contracted the virus and succumbed to it, his family would have lost the H4 status and faced self-deportation. This verity of an uncertain life for aliens in the US influenced his decision to leave the US and move back to India. In the United States, noncitizen nonimmigrants have no social security though they pay millions in taxes for years.

In March 2021, Indian healthcare workers and frontline COVID warriors who have been waiting for green cards over a decade held a silent demonstration at the US Capitol in Washington DC. They jointly protested against 150 years of green card backlog. Their slogan was “COVID warriors are dying in green card backlog; facing aging out children; going through family separation.” They held banners saying, “My parents are COVID Warriors. If they die, I get deported. I lived all my life in USA. Is this ‘compassionate’ immigration, Mr. Biden? End green card backlog now.”

Dr. Pranav Singh currently lives in New Delhi. He is working for a telemedicine company and trying to settle in India. His wife is still in the US as his daughter has to finish her 10^th grade before relocating to India.

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A lot has been written about the green card limbo affecting the future of Indian families in the United States. Several bills including the HR 3648 EAGLE Act 2021, the RELIEF Act, and the Fairness for High-Skilled Immigrants Act have been brought onto the table seeking elimination of the country-wise cap on the number of employment-based green cards issued to Indian H1B professionals.

Picture Credit: Gofundme

Another Indian family fell apart over the green card logjam while waiting for legal permanent residency in the US. 48-year-old Anthuvan Kuzhandaisamy, a high-skilled Indian engineer on H1B, died of a heart attack early this month. His untimely demise has left his wife and two children vulnerable to deportation from the US as they have been rendered out of the H4 dependent status. After bidding a final goodbye to Anthuvan Kuzhandaisamy, they are looking towards uncertainties lying ahead.

Anthuvan, a techie from Tiruchirappalli in Tamil Nadu, was a SAP engineer on contract for Apple through DGN Technologies. He had built a happy nest in California while working for more than 12 years in the land of ‘American Dreams’. In a bid to concretize the nest in the country that he, along with his wife, had started calling their second home, he had filed a green card petition 8 years ago. But the wait time for a green card running into decades for Indian immigrants is taking toll on families like Anthuvan’s.

He was not just a high-skilled professional but also a kind-hearted soul. He helmed the IdhayaOli Foundation, a charitable nonprofit in San Francisco and Tamil Nadu, to help the needy and feed the hungry. He raised thousands of dollars to help the families of laborers who were left stranded and starved after India slipped into lockdown over the pandemic last year. Ironically, his own family is helpless and devastated today.

Anthuvan’s family cannot continue their stay on H4 visa in the US, according to the immigration system that Republic Zoe Lofgren described as ‘severely broken’ while introducing the EAGLE Act 2021 in June. It won’t be easy for them to restart their lives from a scratch in India either. His 19-year-old daughter, a sophomore at Arizona State University, can continue to stay in the US if she applies for the change of status from H4 to F1. To have an F-1 visa means paying exorbitant tuition fees, even if she has called the US her home since her childhood.

Also Read: Denial of H1B Renewal Leaves Indian Family Stranded

The sorry fate of tax-paying resident aliens, including Indian H1B workers stuck in the never-ending green card limbo, has caused outrage in the wake of Anthuvan’s sudden demise. On top of that, a PTI report about more than one lakh employment-based green cards on the verge of being wasted by September 30, 2021 has agitated the community of Indian immigrants. If the green card petitions continue to be processed at the current pace by the US Citizenship and Immigration Services, over 100,000 green cards will end up being wasted.

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Many US green cardholders, who are still stuck in India because of adverse circumstances triggered by the pandemic, need to reclaim their legal permanent residence in the United States. A majority of the green cardholders stuck in India are senior citizens and middle-aged professionals whose return travel to the US has been disrupted due to their contraction of the virus, serious illness of an immediate family member, death-like emergency in the family, or their deep-seated fears of traveling amid the pandemic.

Whatever the reason is, you may find it difficult to re-enter the country or face denial of re-entry in the worst case after a certain period of absence from the US.

Picture Credit: Fileright.com

Your lengthy absence from the US will subject you to additional questions during an examination of your LPR status by the US border officials. Usually, your green card must be valid and that you have not relinquished legal permanent residence (LPR) must be established for reentry. In some cases, lengthy absence causes automatic loss of the LPR status if the green cardholder does not apply to the US Citizenship and Immigration Services, seeking a reentry permit prior to his/her departure from the country.

What is USA’s green card re-entry permit?

The United States’ re-entry permit for green cardholders is a travel document, with the help of which you can maintain your LPR status while traveling abroad for up to 2 years.

If green cardholders have been absent from the USA for any length of period between 180 days and one year, the onus of proving that they still retain the LPR status falls on them. It is because there is a ‘rebuttable presumption’ that a green cardholder staying outside the country for more than 180 days may have relinquished permanent residence. They are also needed to prove why they were not able to return to the US within 180 days of departure. Valid house rent receipts, property tax receipts, back account record, US tax returns, driver’s licence, or any proof of employment in the US can help them prove that the US is still their country of residence.

Recently, the American Immigration Lawyers Association (AILA) strongly recommended that green cardholders should travel back as soon as possible if their absence has exceeded 180 days.

Even if an official of the US Customs and Border Protection assumes that you have renounced your LPR status, you won’t be sent off immediately. Rather, you will be permitted reentry with a Notice to Appear (NTA, a notice for initiation of deportation proceedings). It requires you to appear in immigration court where you can furnish proofs validating your LPR status.

Seeking reentry to the US after more than 180 days of physical absence is equal to seeking admission – which is granted to an applicant if he/she has no likelihood of becoming a security threat or public charge. On return to the US after more than 180 days and less than one year of absence, you are likely to face inadmissibility charges if you have stayed outside the US due to your health issues, medical treatment, or unemployment.

The re-entry rules are different for US green cardholders with respect to their absence as long as over a year. Absence of more than one year renders your green card invalid resulting in automatic loss of your legal permanent residence status. It adds to the above-mentioned problems for the returning green cardholders. However, providing evidence ascertaining that you were on a temporary visit to India or some other country and that you got stuck amid unprecedented circumstances, such as the pandemic, is a solution to this.

“Those outside for more than a year should first try to apply for returning resident or SB-1 Visa,” the American Immigration Lawyers’ Association (AILA) recommends.

If you are not able to obtain a Returning Resident or SB-1 Visa and if your green card validity has not expired, you can board a flight in India and explain/prove the unprecedented reasons for your prolonged stay outside on arrival at the port of entry in the US, according to leading Indian American immigration lawyers. The US Customs and Border Protection (CBP), at a port of entry, is likely to make ‘secondary inspection’ to examine the nature of your absence from the US and ask you to submit Form I-193, a paid application for waiver of passport and/or visa.

In March 2021, CBP sent a notice to the airlines, requiring them to board green cardholders as long as their LPR status is valid. What to do if you are denied boarding on account of your long absence from the USA, despite having a valid green card? You can request the airline to contact CBP’s Regional Carrier Liaison Group (RCLG) for a check.

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