• Permanent Residents Who Undertake Temporary Foreign Assignments Should Apply for Re-Entry Permits -- Recent Development Regarding the Application Process
  • January 16, 2009 | Authors: Gregory P. Adams; Douglas Halpert
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • U.S. permanent residents (green card holders) sometimes are asked by their employers to undertake a temporary foreign assignment. If such an assignment might last longer than six months, it is advisable for the permanent resident to apply for and obtain a re-entry permit issued by the Department of Homeland Security. We make this recommendation even though the permanent resident can technically use an unexpired permanent resident card to re-enter the U.S. after foreign travel of less than 365 continuous days.

    There are several reasons for our recommendation. First, a returning permanent resident has the burden of proving that he or she has not abandoned the intention to reside permanently in the U.S. The filing of a re-entry permit application serves to record the permanent resident's intention to return to the U.S. after the temporary assignment abroad and helps to protect the returning permanent resident from a challenge at the port of entry by a U.S. Customs and Border Protection ("CBP") official. An employer may unexpectedly need to extend the permanent resident’s foreign assignment, so filing a re-entry permit application is generally advisable if, again, the assignment is expected to last a half year or longer. Second, according to U.S. Citizenship and Immigration Services ("USCIS") rules, there is a rebuttable presumption that an absence from the U.S. of six to 12 months’ duration will break the continuity of residence required for U.S. naturalization eligibility. The issuance of a re-entry permit can help to overcome or rebut this presumption.

    While filing a re-entry permit application is typically a straightforward exercise, USCIS now requires re-entry permit applicants to provide biometrics (fingerprints, photograph, and signature specimen) at a USCIS-operated Application Support Center before applicants depart the U.S. Historically, re-entry permit applicants could simply file the application, verify the delivery by overnight courier, and then depart the United States. Having to remain in the U.S. to receive the biometrics appointment notice may pose a hardship for some applicants because typically USCIS takes several weeks (or longer) to issue biometrics appointment notices. USCIS has said that it might deny applications where the applicant departs the U.S. before receiving the biometrics appointment notice and providing biometrics. USCIS has suggested that applicants should apply at least 60 days in advance of their U.S. departure date to avoid a problem. In some instances, USCIS will expedite the scheduling of a biometrics appointment so that the appointment occurs shortly after the re-entry permit application is filed.