SB-1 returning resident visa: One year out is all it takes!

By Dev B. Viswanath, Esq.

Once an individual is granted permanent residence, he/she can travel in and out of the USA without problem if the permanent residence is not relinquished or the person starts residing abroad, which may indicate abandoning the Lawful Permanent Residence.

Permanent residents who wish to reenter the US need to present their green card as well as the passport from their country of citizenship to reenter if the duration of the trip is less than six months. Within six months, people are generally considered to be returning home to the US after having taken a vacation or short trip abroad.

If the trip is longer than six months but shorter than one year, the person is considered to be seeking readmission and may be asked questions regarding the trip to see whether or not he/she has abandoned the permanent residence while abroad.

If the duration of the trip is more than one year, and the applicant knows before departing that he/she would be out of the US for more than one year, then the applicant may consider applying for a re-entry permit, which will allow him/her to stay out of the US for up to two years with the ability to reenter multiple times if needed or just once within the two year period.

However, there are people who get stuck outside the US and just cannot return before one year. These people generally have no idea that they would need to be out for long or just cannot help returning within one year.

Technically speaking, remaining outside the US for one year or more effectively abandons one’s green card status.

A permanent resident of the US who remained outside the country for more than one year without obtaining a re-entry permit can either go through the entire green card process all over again or may apply for a returning resident visa, also known as the SB-1 visa.

With the SB-1 visa, issued by a consular post, the individual will be able to retain residence and return to the US as a permanent resident without interruption. To apply for an SB-1 visa, a returning resident must show proof of the resident’s continued unbroken ties to the US and that the trip was extended as a result of events beyond control. Some examples of reasons why an extended stay abroad was necessary are illness, death, pregnancy, or permission not granted to leave the foreign country.

A permanent resident who wants to enter the US after staying abroad for an extended period can be eligible for the SB-1 visa if:

At the time of departure from the US, the individual was a lawful permanent resident; When leaving US, the individual did not leave with the intention of not coming back; When an individual returns to the US after an extended stay abroad, it must be due to circumstances beyond control; and the individual is eligible for the SB-1 visa in all other aspects.

There are a few individuals who do not need the SB-1 visa even if they have been outside the US for more than two years. They are spouses and children of a member of the US Armed Forces or civilian employees of the US government stationed abroad. If an individual falls within these two categories, he/she may use the Permanent Resident Card to enter the US even if it has expired.

The processing time for the SB-1 is usually quite quick and a decision is given at the interview. More recently, in a “covid world”, additional steps are required that can be done before or after the interview if the SB-1 is granted. The additional steps are namely, a new DS-260 and new Police Clearance Certificates, and possibly a new Immigration Medical. If an individual’s application for the SB-1 visa is rejected, he/she will not be allowed to reenter the US without another valid visa.

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