Are you interested in a returning resident visa to the United States? If so, this article describes the process and the options available. It is part of our series of articles on green cards. If you already know that you need help, you can skip the article and contact us.
What Is a Returning Resident Visa?
Returning resident visas deal with the problem of staying out of the United States of America for too long as a lawful permanent resident. The whole idea of lawful permanent residency in the United States is living and working here. To help you so that you do not abandon or otherwise compromise your lawful permanent residency status, we have an article on green card rules. Additionally, you can avoid many of the problems associated with abandoning your residency through advanced planning. We have an article on applying for a reentry permit that excuses longer absences. In the event that none of this applies to you, you are out of the United States and have stayed out too long, this article outlines one route to return.
USCIS allows lawful permanent residents or LPRs to remain out of the United States for up to six months. This stay does not cause any problem in the LPR’s return to the United States. Customs and Border Protection (CBP) may question a lawful permanent resident who spends more than six months and less than a year outside of the United States. The LPR may find the process of admission to the United States difficult and troublesome. Beyond a stay of one year, CBP may pressure a lawful permanent resident to relinquish lawful permanent resident status. CBP offers the LPR admission as a tourist. An LPR can avoid this kind of trouble in returning to the United States. A lawful permanent resident who has been outside the United States of America for more than one year may apply for a resident return visa.
Returning Resident Visa Requirements
An applicant for a returning visa begins the process at the US Consulate in the country in which lives. The returning resident must prove to the consular officer that when he left United States, he was a lawful permanent resident. He must also show his status had not expired or nor been terminated. Next, the lawful permanent resident must be able to show that when he left the United States, he intended to return. Our returning lawful permanent resident must also show the reason that he was outside of the United States for more than one year. In providing evidence on the reason, he must show it was beyond his control and it was not his fault.
Applying for the Returning Resident Visa
A lawful permanent resident makes application for the returning visa using form DS-117. For required documents, the lawful permanent resident must provide a copy of the LPR card, form I-551. You must also provide documentation about travel out of the United States so the consulate can determine exactly when you left. By far, one of the most difficult aspects of this process is providing evidence of your ties to the United States. Also challenging is documenting the reasons for your extended-stay outside of the United States.
For proof of your ties to the United States and your intention to return, one of the best pieces of evidence that you can provide is ownership of real property inside the United States. Another good piece of evidence is the LPR filing his US federal tax return. Other examples that meet this rule are evidence of economic, family or social ties.
Beyond Your Control – Proving the Reason for Your Stay outside the US
Experienced immigration attorneys note that many returning resident applications fail because of insufficient evidence. Evidence that the extended-stay was beyond the control of the lawful permanent resident is very important. You must have good documentation in this category to be successful. Many lawful permanent residents stay outside of the US due to medical reasons. A lawful permanent resident may fall ill and need extended care. Alternatively, a lawful permanent resident has returned to his home country to care for a sick relative.
Medical Reasons for Extended Stay outside of the US
In these examples of medical reasons, a successful application contains ample evidence of the illness. It also includes documents about the treatment along with evidence from the medical provider. For example, where a lawful permanent resident has provided nursing care for a terminally ill relative, proof of this care along with a death certificate will generally be successful. An LPR could even request to return after sorting out the relative’s affairs. An application for returning resident visa in which the period of medical care was short, and the lawful permanent resident enjoyed an extended vacation will likely fail.
Employment Reasons for Extended-Stay outside of the US
Besides medical reasons for the extended absence, the other most common reason for remaining out of the United States is employment. It is important to think about what the returning resident must prove in this case and how that relates to employment. If the United States employer assigns someone to work overseas on a project the LPR employee may have a choice to either accept the project or lose his employment. In other words, the stay outside the United States was beyond the lawful permanent resident’s control as he was meeting the requirements of the employer. This reason works well because it is a US employer dictating when and where the lawful permanent resident employee works.
Perhaps it is obvious, but this reason only applies to US employers. If a lawful permanent resident works outside of the US for a foreign company, the consular officer will regard that choice as a personal one. In other words, it will not be beyond the LPR’s control. A US consular officer will likely deny any claim of extended absence on this ground.
Using the SB-1 Returning Resident Visa
If the application is successful, the returning resident will receive the SB-1 immigrant visa. The process of return is not over though; the LPR will have a few requirements to complete, such as applying for the immigrant visa. Once the consulate enters the immigrant visa into the returning resident’s passport, the returning resident may enter the United States. Once inside the US, the LPR must pay the required ELIS fee. USCIS will then send a new lawful permanent residency card. The resident’s status as a lawful permanent resident regained.
If Your SB-1 Returning Resident Application Fails
If the lawful permanent resident is unsuccessful in seeking the SB-1 visa, it may still be possible to enter the United States. Such an entry provides the LPR a chance to reestablish status. We discuss this in our post on reentering the United States, and the problems that a returning resident may encounter.
How We Can Help
We understand the issues associated with extended absences from the United States. Our attorney knows the effect on your lawful permanent residency status. We have helped lawful permanent residents who have extended absences successfully maintain a lawful permanent resident status. Our help enabled LPRs to successfully reenter the United States. If you would like our help, please contact us.
