If you are a permanent resident alien returning to the United States after a visit abroad, you must “apply for readmission” at the port of entry upon your return. Although in practice, this only involves presenting your Alien Registration Receipt Card (green card) to the immigration authorities at the port where your reenter, as a matter of law, each time you reenter, you are potentially subject to all inadmissibility grounds of the immigration laws. This means that the INS officer at the port of entry can inquire into matters such as the nature and purpose of your trip abroad, as well as a variety of other matters. Generally, if you have only been absent from the U.S. for less than one year, you may apply for readmission by presenting your green card to the immigration officer at the port of entry. This time limitation, however, does not apply to you if you are a spouse or child of a member of the U.S. Armed Forces, or if you are a civilian employee of the U.S. Government and you were stationed abroad in connection with official orders. In this case, you must present your green card, not have relinquished your residence in the U.S., and be preceding or accompanying the member or employee, or be following to join the member or employee in the U.S. within 4 months of his/her return.
If you are a permanent resident and you intend to leave the U.S. and remain abroad for more than one year, you should, prior to your departure, apply for a Reentry Permit with the INS. This is because the INS takes the position that you have “abandoned” your permanent residency if you depart from the U.S. for longer than one year. Reentry Permits are valid for 2 years and are not renewable and may not be extended (but you may return to the U.S. and get a new one after 2 years, with a maximum of 6 years in total). You can then use the Reentry Permit to reenter the U.S. within the 2 year validity period. It is important to note, however, that a Reentry Permit does not preserve residency for purposes of Naturalization. In this regard, you must file an application for preservation of your U.S. residence with the INS – prior to your departure from the U.S. Note also that merely returning to the U.S. once a year for a few days does not necessarily “revalidate” your visa. If you engage in this practice, the INS officer at the port of entry may still inquire into the length and purpose of your stay abroad, and whether you have abandoned your U.S. residence. This is a risky practice and should be discouraged.
If you are permanent resident and you are unable to return to the U.S. within the validity period of your green card or Reentry Permit, you may apply for a Special Immigration Returning Resident Visa (SB-1) at the U.S. consulate nearest you. In order to qualify for the SB-1 Visa, you must show that:
- You were a permanent resident when you left the U.S.;
- You intended to return to the U.S. when you left, and you have maintained this intent;
- You are returning from a temporary visit abroad and, if your stay was lengthy, it was caused byreasons beyond your control and for which you are not responsible; and
- You are eligible for an immigrant visa.
If your SB-1 visa is refused (or your are otherwise denied admission) on the ground that you have given up your U.S. residence due to your protracted absence abroad, it may or may not be possible to obtain a non-immigrant visa. This will depend upon whether you can prove that you have an established residence abroad to which you intend to return after your stay in the U.S. If you cannot establish these ties abroad, you may have no alternative but to reapply for an immigrant visa on the same basis that you originally immigrated, if possible.
If you have any questions, contact South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.