Returning Residents and the SB-1 Visa

Lawful Permanent Residents (LPRs) are advised to limit their stays overseas to periods shorter than 12 months in order to maintain their Permanent Residence status in the United States. LPRs that wish to stay overseas for a period greater than one year and less than two years are required to have a valid re-entry permit. Without a re-entry permit, the person may be denied entry into the U.S. But what about an LPR that traveled overseas, with the intention of returning to the U.S. and maintaining their resident status, and could not return within the two-year period for reasons beyond his/her control?

One option that remains is that the person is required to once again go through the entire process of obtaining a green card-permanent residence. A new petition would need to be filed for the intending immigrant, either through a family-based or employer-based petition. This petition would need to be approved before the intending immigrant can re-file for Permanent Residence. Since this process involves a number of applications and processing times for these respective applications, this results in a lengthy overall processing time.

The other option is a Returning Resident Visa. This visa, known as the SB-1, allows the resident to return to the U.S. and resume their lawful permanent residence status even after having overstayed his/her visit overseas. This visa, which applies to both LPRs and conditional residents, is reserved for instances where returning to the U.S. was not feasible for the LPR. Eligibility for this visa rests on the following criteria:

1. The LPR maintained valid permanent residence status at the time of departing the U.S.;
2. The LPR departed the U.S. whilst having and maintaining the intention to return to the U.S.;
3. The stay overseas extended passed the one (1) year occurred due to factors that are beyond the control and/or responsibility of the LPR; and
4. The LPR is not ineligible for an immigrant visa on any other grounds (ie: if the LPR is convicted a crime overseas, he or she can be inadmissible to the U.S.).

After having met these requirements, the LPR should apply for the SB-1 visa at the nearest U.S. Embassy or consulate. Form DS-117 should be completed in its entirety and submitted along with the LPR's Form I-551 (Permanent Resident Card) and re-entry permit, if applicable. Additional supporting documentation such as travel dates and maintained ties to the U.S. should be submitted as well. Finally, there should be documented proof that the LPR's stay overseas was extended due to reasons beyond his/her control. This documentation can be in the form of medical records, employment records, or any other form of documentation which shows that the LPR was incapable of returning to the U.S. in a timely manner.