What Is an SB-1 Returning Resident Visa? Your Complete Guide
Green card holders who have been outside of the United States for a year or more may need a Returning Resident visa. Here’s what you should know.
Lawful permanent residents (LPRs) of the United States are allowed to travel outside of the country, but only for a certain amount of time. There is a way to extend your period of stay outside the U.S. with a re-entry permit, and you should use this option if you intend to travel outside the U.S. for an extended period.
If, for some reason, you did not apply for a re-entry permit before leaving the country, you’ll need an SB-1 Returning Resident visa to re-enter the U.S. Here’s more about what you should know to avoid the need for a returning resident visa and what to do in the event that you need one.
What Is a Re-Entry Permit?
A re-entry permit is a document issued by the U.S. Citizenship and Immigration Services for permanent residents of the United States who need to remain outside the country for an extended period of time.
Traveling with a re-entry permit can prevent issues that might arise when a green card holder travels outside of the United States for an extended period of time and tries to return to the U.S. A re-entry permit gives a green card holder up to a two-year period to be outside the U.S. without being found to have abandoned their permanent resident status.
If you haven’t left the country yet and you’re planning an extended trip, apply for your re-entry permit and attend your biometrics appointment with USCIS. You cannot start the application process for a re-entry permit from outside of the country.
However, you don’t need to be in the United States while you wait for your permit to finish processing after you file your application for a re-entry permit. Your re-entry permit can be sent to the U.S. Embassy or Consulate closest to your location, and you can pick it up while you’re away.
You cannot extend a re-entry permit while you’re gone. If you want to stay longer or visit another country, you need to return to the United States and apply for a new re-entry permit. You’ll have up to another two years from the date the permit was issued to return to the United States.
If you travel without a re-entry permit and you’re gone for longer than one year, you’ll need a Returning Resident Visa to re-enter the U.S.
What Is an SB-1 Returning Resident Visa?
An SB-1 Returning Resident Visa is a visa for green card holders who left the United States for one year or longer without first obtaining a re-entry permit.
If you left the United States for less than one year without a re-entry permit, you may not need a Returning Resident Visa. If you left the country with a valid re-entry permit, you also don’t need a Returning Resident Visa if you return before the re-entry permit expires.
Who Needs a Returning Resident Visa?
A Returning Resident Visa can help people who had an unexpectedly long trip outside of the United States return without their permanent resident status being questioned.
Individuals who may need a Returning Resident Visa include:
- Permanent resident card holders who left the U.S. for longer than one year without a re-entry permit from USCIS;
- Green card holders who left the U.S. with a re-entry permit, which has expired while outside the U.S.; or
- Any green card holder who appears to have abandoned their permanent resident status.
To qualify for a Returning Resident Visa, you have to be able to show that it was always your intention to return to the United States. You also will need to prove that circumstances beyond your control prevented you from returning to the United States.
An example of circumstances beyond your control would be a serious illness or severe injury while on your trip that prevented you from safely traveling home within the allowed timeframe. For example, most doctors recommend that patients don’t fly for several months after major surgery. If you only intended to stay for 10 months and you had emergency surgery, you might need to extend your stay to 13 months as per your doctor’s orders.
Unexpectedly extending your vacation, deciding to add new stops to your travel itinerary, or dealing with a non-emergency situation won’t be accepted as circumstances beyond your control.
Pandemic Exceptions Are Over
During the pandemic, travel became more difficult to approach safely. Borders were closed, and flights were suspended. If green card holders traveled during this period, they may have been prohibited from returning to the United States within one year by government institutions.
There was leniency granted to people who had difficulty traveling safely during the pandemic, but as far as the Department of Homeland Security is concerned, the pandemic is no longer an excuse to not return to the U.S. COVID-19 cannot be used as a reason for failing to return on time or traveling without a re-entry permit.
If you’re still overseas and you need to get back to the United States, you’ll need an SB-1 Returning Resident visa.
Circumstances may change if another travel advisory warning is issued in the future, if the borders become closed, or if there are no flights out of the country where you’re currently located. If it’s clear that laws and regulations will prevent you from returning when you’re due to return, DHS may be lenient.
What Happens If I Fly to the United States Without a Returning Resident Visa?
If you traveled without a re-entry permit and left the country for longer than one year but still have a valid green card, you’ll likely still be allowed to fly into the country. When you arrive, the Department of Homeland Security will question you.
Here, they will ask you why you were gone for so long. This is their attempt to figure out if you’ve abandoned your permanent resident status. You can agree with the finding or ask to see an Immigration Judge.
If you request to see an Immigration judge, you’ll receive a notice from the Immigration Court requiring that you appear before an Immigration Judge. The Department of Homeland Security will challenge your green card and attempt to suggest that you abandoned your permanent resident status. You will have an opportunity to explain to the Immigation Judge why you stayed outside the U.S. so long and present supporting evidence.
As a disclaimer, this court battle can last for years, and it’s very expensive and stressful, possibly requiring you to take out a personal loan. These proceedings likely will not work out in your favor, especially if you attempt them without a knowledgeable and thorough immigration attorney. If you lose, you can be deported.
The best thing to do is to get a re-entry permit and return to the United States before that permit expires. If it’s already too late to do that, speak to a detail-oriented immigration attorney and attempt to get a Returning Resident Visa. If you already returned to the U.S. without a Returning Resident Visa, you will need to hire an attorney to help you navigate removal proceedings.
How Do I Apply for an SB-1 Returning Resident Visa?
You’ll work with your local U.S. Consulate or U.S. embassy to apply for an SB-1 Returning Resident visa. You’ll fill out the required forms and provide supporting documents or additional information that demonstrates that you never intended to abandon your permanent resident status in the United States. You also need to demonstrate that you weren’t in control of the circumstances that prevented you from returning.
Then, you’ll have an interview at the Consulate or Embassy to explain your situation to a consular officer. They’ll consider your statement and review any supporting documentation you provide. You need to be clear that your intention was only to make a temporary visit outside of the country. They will determine your eligibility for an SB-1 visa.
If the consulate is satisfied with your reasons, they’ll issue you an SB-1 Returning Resident Visa that will allow you to travel home without the risk of being detained for inspection by the Department of Homeland Security.
If they aren’t satisfied with your reasons, you won’t be granted an SB-1 visa. If your green card is still valid, you’ll have to explain your circumstances to the DHS if you attempt to re-enter the United States and risk removal proceedings. If your green card has expired or you do not wish to risk removal proceedings, you should speak to an experienced immigration attorney to determine how you can return to the U.S.
It’s Wise to Get a Lawyer’s Advice
If you’ve stayed outside of the United States for longer than your green card allows, you’ve already jeopardized your permanent resident status. You’re likely to encounter obstacles when you attempt to re-enter the country or apply for an SB-1 Returning Resident visa.
If you need to return to the United States after you’ve overstayed your time outside of the country, you need to contact a knowledgeable immigration attorney immediately. An immigration attorney will be able to review the unique details of your circumstances and tell you which option is the best option to pursue. An SB-1 Returning Resident visa may or may not be the right solution for your case.
The Cohen, Tucker & Ades team of compassionate immigration lawyers are here to answer your questions about complicated immigration scenarios — all you need to do is contact us today.