Returning Resident (SB-1)

The “green card” is also known as “Form I-551” (noted in the corner of the card). The green card, which is now actually green in color, is one of the most coveted documents in the United States (apart from the naturalization certificate). Before we talk about getting your LPR status back, it’s important to know all the ways you can lose this status. 

There are really only five ways:

• Rescission (e.g. based on criminal convictions)
• Adjustment of status to nonimmigrant status (foreign national decides to switch back to being a nonimmigrant)
• Departure under an order of removal or deportation (by an Immigration Judge)
• Intentional relinquishment (foreign national files Form I-407)
• Unintentional relinquishment (abandonment through extended absences)

The Green Card can be used to re-enter the U.S. only if you are returning to an “un-relinquished, lawful permanent residence after temporary absence not exceeding one year.” The Department of Homeland Security considers many factors in determining whether you “abandoned” your LPR status, which it has ways of determining independently.

Many foreign nationals believe that if they briefly visit the U.S. twice a year, those 2 trips where they remain in the U.S. for a few days/weeks are sufficient to maintain their lawful permanent resident (LPR) status. This is a myth.

The U.S. government gave you your green card based on the Immigration and Nationality Act: INA 101(a)(20). “The term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”

These words mean the following:

• “lawfully admitted” – if you lied about being married, having children, being divorced or provided other false information to get your green card, then you were not entitled to receive your LPR status
• “privilege” – having LPR status is a privilege, not a right so it can be taken away
• “residing permanently” – you are supposed to be living in the U.S. permanently, not visiting a couple times a year for a few weeks
• “in accordance with immigration laws” – if you have done anything to make you inadmissible or deportable, then you can lose your LPR status
• “such status not having changed” – you were an LPR at one point, but are not one now

So if you actually live abroad (have a home in a foreign country where you live, work in a foreign country, etc.) and do not maintain sufficient ties to the U.S. the government may believe that you “abandoned” your lawful permanent resident status. In this case, even if you returned to the U.S. every five months, stayed in the U.S. for 1 month, then departed again for another five months, the border agent has the authority to take away your green card and put you into removal proceedings.

The only exception is if you apply for a Re-entry Permit. For example, one of our clients works for an NGO that does humanitarian work in Tanzania. We file his and his wife’s re-entry permit shortly before the two (2) -year expiration. He has been working in Tanzania as an LPR for several years. However, he is not required to pay African taxes and he maintains several ties to the U.S.

Remember, the U.S. government gave you LPR status so you can live in the U.S. permanently and eventually naturalize. The government will eventually question you why you have not naturalized after several years of being an LPR. It is advisable to become a citizen as soon as you are eligible. The U.S. government can institute formal proceedings against you at any time to rescind your green card (even if it is outside of the statute of limitations).

Now let’s discuss the actual SB-1 visa. Anyone who has dealt with the Consulate knows that it follows a very specific protocol and is not the most communicative. An LPR or conditional resident (CR) who has remained outside the United States for longer than one year, or beyond the validity period of a Re-entry Permit, will require a new immigrant visa to enter the United States and resume permanent residence. However, immigration law allows for the issuance of a “returning resident special immigrant visa” to an LPR who remained outside the United States due to “circumstances beyond his/her control.”

To qualify for Returning Resident Status, you will need to prove to the Consular Officer that you:

• Had the status of a lawful permanent resident at the time of departure from the United States;
• Departed from the United States with the intention of returning and have not abandoned this intention; and
• Are returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible.

You can expect that after the application is filed with the Consulate, there will be two interviews: one for the returning resident visa and the other for the immigrant visa. So the SB-1 applicant must prove eligibility for an immigrant visa (just like the first time) and must pass a medical exam (again).