Returning Resident Visas : Limited Option after Extended Travel
Posted Sep 19, 2008
From our Correspondent at Murthy Immigration Services, Private Limited, Chennai, INDIA
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The MurthyBulletin recently ran a Best of MurthyDotCom article on the subject of extended travel abroad by U.S. permanent residents (often referred to as "green card" holders). That article, originally posted on April 19, 2002, is entitled Immigration Rumor: Travel by Permanent Resident. As the article explains, permanent residents who are abroad for a year or more require a reentry permit in order to return to the United States. Additionally, such permanent residents must establish that they, in fact, do reside permanently in the U.S. Since reentry permits must be requested from within the U.S., permanent residents who plan to travel for extended periods should request their reentry permits prior to departure. There might occasionally arise a situation in which a permanent resident intends to return to the U.S. in less than a year, but is unable to do so. In such a situation, the Returning Resident Visa (SB1) may provide an option. In keeping with our ongoing efforts to educate MurthyDotCom and MurthyBulletin readers on immigration matters, the basic requirements for a Returning Resident Visa are explained here.
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Very Strict Criteria
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The requirements for the Returning Resident Visa are very strict. Eligible individuals are those permanent residents who have remained outside of the United States beyond a one-year period for reasons beyond their control. This must be differentiated from valid reasons for needing or wanting to spend time abroad. The inability to find employment in the U.S. may be a good reason for leaving the U.S. The economy / job market is beyond one's control, but the ultimate decision to leave and the scheduling of one's return flight is within her/his control. Thus, this generally is not sufficient for approval of a Returning Resident Visa. The same can be true when caring for older or sick relatives, when one has made a decision to relocate for that purpose, as opposed to visiting temporarily and being detained due to an unexpected development.
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In standard text regarding SB1 requirements, the U.S. Consulate in Chennai, India, has stated, "it is worth noting that few people can demonstrate that their prolonged stay abroad was for reasons beyond their control, rather than being the result of a conscious choice."
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Criteria for the SB1 Visa
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There are three criteria for issuance of a Returning Resident Visa. The applicant must demonstrate EACH of the following:
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The applicant had the status of lawful permanent resident at the time of departure from the U.S.
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The applicant departed the U.S. with the intention of returning, and has not abandoned this intention.
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The applicant is returning to the U.S. from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the applicant's control and for which s/he was not responsible.
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Analysis
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Clients have been successfully represented in Returning Resident Visa cases, both through the Murthy Law Firm and Murthy Immigration Services, Pvt. Ltd., in Chennai, India. It is necessary to carefully document each of the required elements. The applicants must show that they were residing in the U.S. as permanent residents at the time of their departure. They must show that they intended to return to the U.S. within the year, but that something literally prevented that possibility.
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The intent to return to the U.S. must never have been abandoned. Sometimes, people leave the U.S. with the plan or hope to return but, at some point, make a decision to live elsewhere. An example of this might be an individual who is having employment difficulties in the United States. S/he may take a temporary assignment abroad with the intention of returning to the U.S. within a year. As time goes on, however, the individual may settle into life abroad, obtain more long-term employment, and cease to have ties to the U.S. Another example would be an individual traveling to care for a sick relative. The initial plan may be to stay for six months, but the relative continues to have problems and, at some point, the individual decides to continue living abroad. This can be a more fact-specific analysis, as there may be a difference between caring for an older relative on an indefinite basis, and caring for a relative with a condition that was expected to be temporary in nature.
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Situations that are more likely to succeed are those in which travel is impossible or ill-advised, due to one's own illness or pregnancy, travel documents being withheld during family disputes, inability to obtain permission to depart the country, or some other situation that is completely beyond the individual's control. The ongoing ties to the U.S. can be very important when establishing intent. An example of very strong ties would be in the case of an individual who travels abroad, perhaps to obtain medical treatment or to care for a sick relative, but whose spouse and household remain in the U.S. There is no way to outline the full spectrum of circumstances that might be successful, as this is a very fact-specific category with numerous variations.
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The Returning Resident Visa process is often one that can be avoided simply by traveling back to the U.S. with some regularity. At the Murthy Law Firm, we frequently encounter people who claim they could not travel but, in truth, they chose not to travel because of the time and expense. When making these decisions, the value of one's green card should be considered - not only the cost and inconvenience of travel.
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Application Procedure
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Applications are made through the appropriate U.S. consulate. Applicants should check with the consulate, or consult an attorney, regarding the specific procedures in place at that time. The general procedure is a two-part process. First, the applicant must apply at the consulate. Currently, walk-in appointments are possible in India, except in Chennai. It is best to check the appropriate website for current procedures and times and to be mindful of U.S. and local holidays. There is a filing fee to apply for the status as returning resident. At the time of this writing, the fee is $400 (U.S.). The appropriate consular website should provide instructions for payment in local currency. At the interview, the applicant must submit Form DS-117 and demonstrate that s/he has fulfilled the criteria set forth above.
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If the one is found to be eligible, the consulate issues a letter confirming that the applicant may apply for an immigrant visa as a returning resident. A checklist of documents required for the immigrant visa interview is also provided. Once the applicant has collected everything that is required, the consulate should be notified that the individual is prepared for the immigrant visa interview. It is important to be mindful of time limitations between the approval of the Returning Resident Visa application and moving forward with the immigrant visa. Once notified, the consulate will send the final package with information on medical examination and vaccination requirements. The applicant has to complete these prior to the immigrant visa interview as well as pay the current immigrant visa application fee/s.
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Once a visa interview is scheduled, under current procedures in India, the applicant must send all requested documents through the VFS within the ten- to fifteen-day window prior to the date of the actual immigrant visa interview. If all criteria is met and all required documentation and information is available, the immigrant visa generally is approved and the applicant receives the passport with an immigrant visa stamp valid for six months from the date of issuance. This stamp serves as temporary evidence of permanent residence (I-551) for one year from the date of endorsement at the port of entry. The applicant also receives a sealed package that is to be opened only by the designated officer at the port of entry.
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Conclusion
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The burden of proof is on the individual seeking the returning resident visa to establish that s/he always intended to return to the U.S. within the required period and that superseding factors made it impossible to comply with the laws regarding return to the U.S. The consulates follow a very high standard for this condition. Although the form used for this application is simple, it is best to obtain legal advice and assistance. In the cases prepared through the Murthy Law Firm and Murthy Immigration Services, Pvt. Ltd., our attorneys have provided extensive documentation of eligibility, in order to meet the burden of proof. An approval should not be expected based simply upon one's own statement, without detailed supporting evidence.
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Though this option is available, we at the Murthy Law Firm and Murthy Immigration Services, Pvt. Ltd. recommend that permanent residents of the United States make all efforts to return to the U.S. in under one year, and that they maintain their ties to and residence in the U.S. The Returning Resident Visa option is a last resort. It is available in very limited circumstances, when one actually did not have the option to board a plane and return to the United States.
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