Being a green card holder in the U.S. doesn’t come without certain stipulations. One of the conditions is that the United States must be your permanent residence, and not anywhere else. The U.S. government forbids abandoning and staying overseas for more than 12 months without due process.
According to the immigration law, staying outside the country for over a year without prior notice to the authority is considered abandonment of your lawful permanent resident status. This post addresses what constitutes abandonment according to Department of State rules, and the process of having your LPR status (green card) reinstated if you have stayed beyond a year outside the U.S. and would like return.
When Can A Permanent Resident Status Be Considered Abandoned?
Two circumstances will render a permanent resident status as abandoned according to the USCIS. They are the voluntary surrender of permanent resident status and staying abroad beyond the stipulated period of time.
Voluntary Surrender of Your LPR Status
This means you have been issued a green card, but you would like to relinquish it. To do this, you will need to file and submit the I-407, Record of Abandonment of Lawful Permanent Resident Status. This is to show that you are willingly and affirmatively relinquishing your resident status. On this form, you will provide personal information about yourself including your alien number and you will be asked to state your reason for the abandonment.
Abandonment Due To Staying More Than a Year Abroad
Your green card might also be considered to have been abandoned if you travel out of the U.S. and stay for over 12 months. As a U.S. permanent resident, one of the requirements by the government is that you always apply for and have all your travel documents with you whenever you travel out of the country, allowing you to return without issue. One of the documents is a re-entry permit, which lets you resume your permanent resident status whenever you are back in the U.S.
A re-entry permit is usually issued with two years validity and can be applied for as many times as possible just to keep showing the U.S. that you still very much intend to come back.
Renewing Your Green Card Back After Abandonment
If you have overstayed your two-year re-entry validity period or one-year green card overseas validity period, you will need to file a returning resident (SB-1) immigrant visa. This may cause some hurdles since you have exceeded the time frame. Your application approval will depend on how well you can convince the consular officer that you deserve to be issued the returning resident visa.
If your SB-1 application is approved, the consulate officer will issue you a new I-551, which will enable you to travel back to the U.S. without having to file a new green card petition. You will only be asked to file and submit a DS-260 form alongside your medical records and application fees.
How Do I Know If I Am Qualified for Returning Resident Status?
The application is filed at the U.S. Embassy or Consulate nearest to your current location abroad. You will be interviewed to determine that you are not inadmissible on health grounds or criminal cases. To qualify for returning resident status, you will have to prove to the consular officer that:
- As of the last time you departed the U.S., you were still a lawful permanent resident. Meaning your reason for departure wasn’t on any crime related issue. You will have to present your green card and other documents that prove you were an eligible permanent resident.
- Your extended period of staying overseas beyond your re-entry permit or green card overseas validity was due to circumstances beyond your control. If it was due to medical reasons or employment with a U.S. company, you may present proof of this to the consular officer.
- You departed the U.S. intending to come back, and you have not abandoned this intention. The main reason for the interview and other re-entry processes is for the U.S. government to be sure that you are not planning to make another place your principal place of residence. During the process, the Custom and Border Protection (CBP) officers will evaluate your engagements in the recent past to determine if you still maintained ties to the U.S. during the period you were away. If you failed to file U.S. income tax returns, or you have declared yourself a nonimmigrant on the U.S. tax returns, the officers may have reason to believe that you intended to abandon your status in the U.S.
Other factors that may be considered by the CBP include if you have properties, investments and your close relatives in the U.S. They may also need to check if major assets like bank accounts in the U.S., a U.S. issued driver’s license, and any other things that will help them to know your true intentions. All these are done to be sure that you are not having stronger ties to another country than you have to the U.S.
Documents to Submit for Returning Resident Application
Documents to be present may vary depending on the Consulate or embassy and applicants’ situations. However, the following are part of the documents that must be submitted.
- A completed DS-117, Application to Determine Returning Resident Status
- Your existing I-551, Permanent Resident Card
- You re-entry permit (if you have one)
- Documents showing the date you traveled outside the U.S. Your airline tickets, or passport stamps will suffice for this
- Proof showing you have ties to the U.S. tax returns, evidence of economic, family, and social ties to the United States will be needed for this.
SB-1 Application Process
The first step is the filing and gathering of all required documents. It is recommended by the State Department that you file this at least three months before your anticipated return to the U.S. After submitting your application, the consulate will schedule an interview with you. Be prepared to answer any questions about your journey abroad and ensure you present all the required documents by the consulate.
What if My SB-1 Application Is Denied?
If your SB-1 application is denied by the consulate, there are other options for you. You can file for a new green card (if you are still eligible) or apply for a nonimmigrant visa. The new visa application should be based under the same category and on the same basis by which you originally migrated. Though this will mean starting the process from the beginning. However, it is better than returning to the U.S. without due process, which is unlawful.
Returning Resident Application Fees
Filing a returning resident visa application will cost you the following charges:
- DS-117 fees
- DS-260 application processing fees.
- Medical exam and vaccination fees.
Instructions on how to carry out the medical examination will be given to you by the officers at the consulate. The exam is usually done by USCIS-designated surgeons to ensure adherence to immigration law. The USCIS has stringent rules guiding applicants’ medical examination.
Consequences of Returning To The U.S. Without Necessary Documents
The officers of the Customs and Border Protection usually inspect returning residents and place people in removal proceedings if they are found without necessary documents after abandoning their residence in the U.S. However, in some cases, people are admitted without mention of their abandonment.
If you are admitted at the point of entry without being asked about your abandonment issue by the CBP officers, that doesn’t mean you are free from being removed from the U.S. According to the Department of State (DOS), you are deportable if you are found to have returned to the U.S. without all necessary documents.
You might have even stayed for years after your return, but the moment the government discovers you reentered the U.S without the due process, you will be placed in removal proceedings. It is, therefore, in your own best interest that you satisfy all the requirements of the law regarding your returning process.
How Our Immigration Attorneys Can Help
Many former permanent residents have lost their status due to their inability to explain their green card abandonment to immigration officers. Your returning process is best handled by an immigration attorney who will help you file your application and provide supporting evidence needed to have a good case at the consulate.
At Immi-USA, we have helped many of our clients regain their resident status in the U.S. after their green cards have been considered abandoned. If your returning resident application has been denied, or you are about to file one, you can always count on our experienced immigration attorneys. Booking a consultation with us is as simple as filling out this contact form.