If a lawful permanent resident remains outside the country due to circumstances beyond his or her control, he or she may be able to apply for a special immigrant visa by filling in Form DS-117
Green card holders don’t always realize spending long periods abroad can undermine their status in the United States. Lawful permanent residents face issues returning to the United States if they spend long periods out of the country.
Lawful permanent residents or conditional permanent residents who spend over a year or beyond the time allowed in their re-entry permit out of the country require new immigrant visas to return to the USA.
However, if a lawful permanent resident remains outside the country due to circumstances beyond his or her control, he or she may be able to apply for a special immigrant visa by filling in Form DS-117.
You may be eligible for a Returning Resident (SB-1) immigrant visa if you are a lawful permanent resident who is unable to return to the United States within the validity period of the green card (one year), or the two years for a re-entry permit.
You should complete form DS-117 to determine returning resident status. You must also submit your permanent resident card, and your re-entry permit if it’s available.
You must provide other evidence to the nearest U.S. consulate or embassy at least three months before travel to allow time for visa processing. You should show airline tickets and passport stamps that provide evidence of travel. Demonstrate proof of your ties to the United States and evidence of your intention to return. Evidence of your status in the United States can include tax returns and ties to family members in the U.S.
To avoid repeating the long process of obtaining a new immigrant visa, you must provide evidence that your long stay outside the country was for “reasons beyond your control and for which you are not responsible.” Examples include a serious illness or employment with a U.S. company abroad.
Your application will be reviewed by a consular official who will decide if you meet returning resident status.
If you return Form DS-117 and supporting documentation but fail to meet the criteria for a returning resident immigrant visa, you may qualify for a nonimmigrant visa. Your immigration lawyer can advise you on a case-by-case basis.
The U.S. Department of State grants an exception to spouses for children of U.S. Armed Forces members or civilian employees of the U.S. Government who are working aboard in an official capacity.
If you fall into this category, you can use your green card (Form I-551) to re-enter the United States, even if it has expired. You will not need a returning resident (SB-1) immigrant visa provided you have not abandoned your lawful permanent president status and your spouse or parent is returning to the United States.
Green card holders who intend to spend protracted periods abroad should always check the rules before they leave to make sure they are protected. Call Gardner & Mendoza at (757) 464-9224.
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