Applying for a U.S. Green Card After Abandonment of Residence

Lawful permanent residence is not always as permanent as the name implies. For example, after a foreign national becomes a lawful permanent resident of the United States (a green card holder) they might decide to no longer live in the United States, and abandon (give up) the green card and other immigration benefits.

Or, U.S. immigration authorities could be the ones to determine that a green card holder abandoned their residence, most likely because they remained outside the United States for an extended amount of time, typically more than one year. That is the subject of this article.

Can I Get My Green Card Back If I Did Not Intend to Abandon My U.S. Residence?

As a green card holder, if you are overseas and wish to return to the United States and realize that you are likely to have a problem with apparently having abandoned your U.S. residence, you can potentially apply for what's called a returning resident (SB-1) visa.

Don't wait until the last minute to initiate this application. The State Department recommends you start the process at least three months in advance of your hoped-for trip back to the United States, to make sure they can process your application in time.

How to Apply to a U.S. Consulate for an SB-1 Visa

To obtain an SB-1 visa, you will be required to demonstrate to the U.S. government that you still qualify for the green card and that you:

• were a green card holder when you departed the United States
• departed the United States with every intention of returning
• maintained ties to the United States during your absence, and
• meant for the travel abroad to be only temporary, but were unable to return to the United States due to circumstances beyond your control.

If you were outside the United States for more than one year, the application process involves filing State Department Form DS-117, available at the DOS website, at the nearest U.S. embassy or consulate and paying the filing fee. The State Department recommends doing this well in advance of your intended return trip. You will also need to present:

• evidence of the dates of your travel abroad, such as copies of your airline tickets or your passport stamps
• your green card (Form I-551)
• your expired reentry permit, if you applied for one before leaving the United States
• evidence to support your claim that you did not intend to abandon your U.S. immigration status and you maintained your ties to the United States, such as bank accounts or other financial accounts, tax returns or IRS tax transcripts, business or home ownership, and so on, and
• evidence that your visit abroad was extended for reasons beyond your control, for example, medical records showing that you or a close family member needed care).

Check the website of the U.S. embassy or consulate where you will apply for details about how to schedule an interview, what documentation is required, and how to submit your application.

What Happens After You Submit Form DS-117

After submitting your application for an SB-1 visa, you will be contacted for an interview with a U.S. consular officer and might be given instructions on where to take a medical exam (although some locations will instruct applicants to wait to take the medical exam until after the interview.)

At the interview, the U.S. consular officer will determine whether you qualify as a returning resident. The officer will review the documentation you submitted with your application and ask for details about your original plans when you left the United States and why your stay abroad was extended.

If the officer determines that you did not intend to abandon your U.S. residency and that your stay abroad was extended for reasons beyond your control, your returning resident application will be approved. Then, you can take the next steps in applying for an SB-1 returning resident visa.

If the consular officer denies your case, there is no appeal. (See the discussion of applying for another immigrant visa below.)

After Approval of a Returning Resident Application

After your returning resident application is approved, you still need to obtain a new visa for U.S. entry. This involves filling out Form DS-260 and supplying two photos that meet DOS requirements, showing your valid passport, and paying the immigrant visa fee. At some locations, the DS-117 application and the SB-1 returning resident visa are processed at the same time, while other locations process the SB-1 at a later date.

To qualify for the SB-1 visa, you must have an approved returning resident application and meet all the other eligibility requirements of the visa. This means the officer will double-check that you remain eligible for a U.S. green card in the first place.

If you have become inadmissible to the United States; for example, due to having developed a medical condition that presents a hazard to others as revealed on the medical exam, or having a criminal conviction on record, this could create hurdles to the reentry process. For more on inadmissibility, see this discussion of who can't get into the United States.

Once your SB-1 visa is approved, you must enter the United States before the visa expires. If you do not, it will be difficult to qualify for another returning resident visa. Upon arriving at the airport or another port of entry to the United States with your returning resident visa, you will be sent to a secondary inspection area for immigrant processing, just like the first time you arrived in the United States as an immigrant. Be sure to allow plenty of time between connecting flights for this part of the process.

Other U.S. Immigrant Visa Possibilities

If for some reason you do not qualify for the returning resident visa, but you still qualify for a green card on the same basis as your previous one, you can potentially resubmit the same type of immigrant visa application.

If your circumstances have changed, look into whether you qualify for another type of immigrant visa (green card). For example, if you qualified for your previous green card as the spouse of a U.S. citizen, but your spouse is now deceased or you have divorced, you would no longer qualify on that basis, so will need to look at your other options. For example, you might now qualify as the parent of an adult U.S. citizen, if your children are U.S. citizens age 21 or over. Learn more about getting a green card.

Reasons to Consult an Immigration Attorney

You no doubt went through a great deal of effort to obtain the green card in the first place, and having your reentry granted after a long absence is in no way guaranteed. Given these high stakes, you'd be wise to consult with an experienced immigration attorney for assistance in evaluating the situation and assembling convincing documents to assist in obtaining approval for your return.