As more and more individuals have found themselves stranded outside the US due to COVID-19, the question for permanent residents is more than mere inconvenience. A US legal permanent resident is bound by fixed time frames. Specifically, an absence from the US of more than six months consecutively may lead to a presumption of an abandonment of US residence. An absence from the US of more than 1 year may impact the validity of the I-551 green card.
In the latter situation, US law provides for a special visa: SB-1 Returning Resident Visa. The SB-1 process actually involves two steps: at the nearest US consulate, the permanent resident submits 1) a DS-117 application to determine whether he or she meets the SB-1 criteria, and if approved 2) an immigrant visa application to determine whether the individual is admissible to the United States. For the SB-1 part of the process, the applicant will submit to the consular officer evidence reflecting 1) continuous ties to the United States; 2) an intent to return to the US when the applicant departed the United States; and 3) circumstances beyond the applicant’s control which led to the prolonged absence. If the SB-1 criteria are met, the applicant then goes through the immigrant visa application process. This includes undergoing a medical exam, submitting a police certificate, and providing documents to show he or she will not be a public charge upon return to the United States.
The stakes for an SB-1 applicant can be extremely high, particularly if the applicant does not have another means to immigrate to the United States. If the application is denied, the consular officer will take the green card. There is no court to appeal to in the event of a denial, although the applicant can ask for reconsideration. COVID-19 can certainly serve as a valid reason for a protracted stay outside the US; for example, perhaps there are no flights available or it is necessary to take care of an elderly relative in the home country. But the SB-1 inquiry encompasses not just this factor, but a myriad of other questions that can impact one’s ability to return to the US. In other words, just because you were stranded outside the US due to the coronavirus, that does not mean that your application will be automatically approved.
The consul will consider numerous factors. How long were you outside the US? Did you pay taxes in the US since obtaining your green card? How did you receive your green card? How long have you been a permanent resident? During this prolonged absence, have you worked outside the United States? Do you have any close relatives in the US? Do you have a job in the US? Did you ever use public benefits in the United States? Do you own real estate in the US? What was your travel history before this trip outside the US: were you making frequent, extended trips or was this trip an exception? Were you involved in any criminal incidents since the last time you arrived to the US? All of these issues should be reviewed and considered before applying for an SB-1 visa.
We have been handling SB-1 returning resident visa applications for more than 25 years. Please contact us to discuss your situation.