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SB-1 Returning Resident What to Do When a Green Card is Abandoned? – Immigration Lawyer New York
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SB-1 Returning Resident What to Do When a Green Card is Abandoned?

By MICHAEL H. MARKOVITCH, ESQ on December, 29, 2016

Many U.S. lawful permanent residents (“green card holders”) who have to or choose to reside abroad should be very careful and be aware that there are rules and restrictions on the time they can be outside of the U.S. and maintain their green card status. Specifically, a stay outside of the U.S. of more than one year at a time without a reentry permit would cause automatic abandonment of one’s green card. If this happens, there is still a procedure and a chance to seek to have the green card reinstated – this is the SB-1 Returning Resident application process.
 
Green Card Abandonment Rules
A green card holder who does not have a valid reentry permit and who has spent more than one year outside of the U.S. will usually not be allowed to enter the U.S. 8 CFR § 211.1(a). In this case, the green card is considered to have been abandoned and the green card holder will require a new immigrant visa (if they are eligible to obtain one again by initiating a brand new green card process) to enter the U.S. Alternatively, the returning resident special immigrant visa allows green card holders who have remained outside of the U.S. due to circumstances beyond their control to apply for reinstatement of the abandoned green card.
 
SB-1 Returning Resident Application Procedure
If the SB-1 Returning Resident application is approved, this eliminates the requirement that a new green card petition be filed. AS part of the SB-1 application process the green card holder will need to be interviewed for both the SB-1 application for returning resident status and usually later for the actual immigrant visa. An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination. There are visa processing fees and medical fees.
  • Step 1. Evaluate SB-1 Returning Resident Application. The first step in the process is to evaluate and confirm that such an application is in fact required and what is the best way to approach the application in terms of presenting evidence to show that the extended stay outside of the U.S. has been due to extraordinary circumstances outside of the applicant’s control. Evaluating and gathering documentation to demonstrate this is very important.
  • Step 2. Prepare and File Application with U.S. Consulate. The application, form plus application fees and supporting documents, is prepared and filed with a U.S. Consulate at least several months before the anticipated travel back to the U.S.  The Consulate will require an interview as part of the application process and the interview is likely going to focus on the reasons and circumstances causing the applicant to remain for more than one year outside of the U.S.
  • Step 3. DS-260 and Medical Exam. If the SB-1 application is approved, the Consulate will ask that the applicant submit a DS-260 form (used for immigrant visa applications), together with applicable fees and medical/vaccination records.    This step will ultimately result in the Consulate issuing and placing in the applicant’s passport anew I-551 (green card) stamp which would allow travel back to the U.S.
 
SB-1 Returning Resident Application Denial
If the SB-1 application is denied on the grounds that the applicant has abandoned or relinquished their residence in the U.S., the applicant may consider applying from the beginning for another green card (if they are still eligible) or they may be able to file an application for a nonimmigrant visa (H-1B, B-1/B-2, etc.).
 
Factors for Successful Returning Resident Application
The key determination in an SB-1 Returning Resident application is whether the applicant was unable to travel to the U.S. due to extraordinary circumstances beyond his or her control.    
 
The applicant for SB-1 Returning Resident Status must show:
  • That they were a lawful permanent resident when they last departed the U.S.,
  • That when they departed they intended to return to the U.S. and have maintained this intent throughout the period of stay outside of the U.S.,
  • That they are returning from a temporary visit abroad and that the extended stay was caused by reasons beyond their control and for which they were not responsible, and
  • That they are eligible for the immigrant visa in all other respects (such as criminal, health, etc. reasons).
In most SB-1 applications the main focus is on the reasons for remaining outside of the U.S. for extended period of time and how these reasons were outside of the applicant’s control. A successful SB-1 application should be able to convince (an often skeptical consular officer) of the special circumstances by clear evidence.
 
Traveling Without SB-1 Approval? Abandonment Can Occur Even After Travel to the U.S.
There are many green card holders who, intentionally or not, travel to the U.S. using their green card after having spent more than one year outside of the U.S. and without applying for SB-1 Returning Resident visa. During U.S. Customs and Border Protection (CBP) inspection at the port of entry, some green card holders are confronted about their stay outside of the U.S. and many are placed in removal proceedings due to abandonment.
On the other hand, many people are admitted at the port of entry as green card holders without any further action at the port of entry. However, an admission as a green card holder does not “fix” the abandonment issue. It is possible, years after the fact, for the U.S. government to make a determination that the green card had been abandoned and to place the applicant in removal proceedings at that time.
When there has been stay outside of the U.S. and possible abandonment, we do not recommend traveling to the U.S. without first obtaining an SB-1 Returning Resident.
 
Conclusion
As described in this article, a green card abandoned by spending an extended period of time outside of the U.S.  is very difficult to reinstate.   Our office always recommends erring on the side of caution and obtaining a reentry permit when there is possibility that a trip outside of the U.S. may take more than one year or if there will be a pattern of spending extended period of time abroad. For those green card holders who are facing abandonment of their green card we would recommend carefully evaluating the type of excuses (and the supporting documents) which can allow an SB-1 Returning Resident application to be approved.
 
For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.
 

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