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SB-1 RESIDENT RETURN VISA

Returning Lawful Permanent Residents must present the required documents for every entry. Specifically, Lawful Permanent Residents who have been out of the country for more than a certain amount of time are required to present a reentry permit when returning to the United States.

What if the returning Lawful Permanent Resident does not have a reentry permit? Furthermore, what if the Lawful Permanent Resident has been out for more than a year or two years or beyond the validity period of the reentry permit?

Here we will discuss the two different approaches we have successfully assisted Lawful Permanent Residents to return to the U.S.

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SB-1 RETURNING RESIDENT VISAS

  • Allows a lawful permanent resident (green card holder) who has been out of the United States for more than a year or two years or beyond the validity period of the reentry permit to return; 

  • Avoids Customs and Border Patrol (CBP) interrogation.

GREEN CARD CBP ENTRY

  • Assist a lawful permanent resident (green card holder) who has been out of the United States for more than a year or two years or beyond the validity period of the reentry permit to return; 

  • Avoids Consulate visa processing and interview. 

PROS

N
Predictable;
N
Clear guideline and requirements;

CONS

N
Extremely challenging consulate interview;
N
Long application processing and wait time;

PROS

N
Does not have to go through consulate visa application processing;
N
Immediate results (good or bad);

CONS

N
Unpredictable;
N
Interrogation by CBP officers;
N
Threat of being turned around;
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CASE PROCESSING OVERVIEW

SB-1 RETURNING RESIDENT VISAS

Step 1: Document preparation, include Form DS-117

The first step is document preparation where the applicant will file Form DS-117 and supporting documents at the consulate post.
 
Note: mission consular management may redirect the applicant to another post in the country if circumstances prevent effective evaluation and adjudication of the
application at the current post.
 
Returning resident: required to present records and documents required by INA 222(b) only for the period of temporary residence outside of the United States.

Step 2: Schedule embassy or consulate interview

Consulate officer must conduct a personal interview with the applicant to determine whether the application for returning resident status is approvable.

 

Step 3: Attend embassy or consulate interview

Next, if the consulate officer approves Form DS-117, they will open a case in IVO and scan in the approved Form DS-117 and supporting documents.
 
Approved applicants will proceed with an application for an SB-1. Based on the post’s intake procedures, SB-1 interview appointment scheduling will vary.

Step 4: Complete DS-260, including medical exam

You can access the DS-260 from the Consular Electronic Application Center (CEAC) website, by going to Immigrant Visas.state.gov and clicking on “Submit Visa Application and Civil Documents,” or on the website of the U.S. embassy or consulate where you will apply. You may wish to preview a sample DS-260 before beginning.

 

Step 5: U.S. entry and CBP interview preparation

At the border, a CBP officer still has the discretion to prohibit your U.S. entry. You should still prepare and have the supporting documents at hand.
 
CBP Search Authority (https://www.cbp.gov/travel/cbp-search-authority)
  • Speaking with travelers and closely examining their documentation
  • CBP relies upon the judgment of individual CBP officers to use their discretion as to the extent of examination necessary.
  • CBP officers are expected to conduct their duties in a professional manner and to treat each traveler with dignity and respect.

GREEN CARD CBP ENTRY

Step 1: Document preparation

List of Required Documents

  1. Dates of travel outside of the United States (Examples: airline tickets, passport stamps, etc.);
  2. Proof of your ties to the United States and your intention to return (Examples: tax returns, and evidence of economic, family, and social ties to the United States);
  3. Proof that your protracted stay outside of the United States was for reasons beyond your control (Examples: medical incapacitation, employment with a U.S. company, etc.).

Step 2: Contact CBP (optional)

You may contact and inform CBP about you flight and U.S. entry.

Step 3: File I-131A with USCIS (optional)

You may file I-131A with USCIS. The document will be single use and valid no more than 30 days, and it is not a guarantee of admission or entry into the United States. CBP will carry out all required procedures upon the person’s arrival.

Step 4: CBP Interview preparation

Prepare for an interview at the border, where a CBP officer has the discretion to question and prohibit a LPR U.S. entry and offer voluntary abandonment.

Step 5: CBP entry

When entering a U.S. port, you must answer all questions truthfully. You may also be subject to a secondary examination upon arrival to the U.S. (https://www.cbp.gov/travel/cbp-search-authority)
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ADDITIONAL RESOURCES

Laws & Issues

NORMAL TIME

Absence of Less than One Year

Residency may be deemed abandoned where person lives and works abroad but visits U.S. every year. Singh v. Reno – Lived abroad to be with wife and child while awaiting priority date, but returned to U.S. and worked during summers; Alvarez v. District Director. But see Saxbe v.Bustos – LPR has the privilege of living abroad.
 
Absence of More Than One Year
 
8 CFR 211.1(a)(2), if LPR remains outside U.S. for more than one year, the regulations require invalidation of this green card, but DHS takes the position that residency also has been abandoned. Diosa-ortiz v. Ashcroft – LPR who left the U.S. under the mistaken believe that a “notice to deliver alien” was a final order of deportation, abandoned his residency when he did not return for more than a year. The sixth Circuit has found that in removal proceedings the burden is on the government by “clear, unequivocal, and convincing” evidence and not just clear and convincing evidence [INA 240(c)(3)(A)] for providing Page 1502 inadmissibility [INA
240(c)(2)(A)] when considering a returning resident accused of abandonment. Ward v. Holder – the Woodby standard is applicable and “clear, unequivocal and convincing” is a higher standard than clear and convincing.
 
9 FAM 502.7-2 (C) (U), LPR individuals who are unable to return to the United States within the travel validity of their Form I-551 or Re-entry Permit, may apply at a U.S. Embassy or Consulate for a special immigrant Returning Resident (SB-1) visa.
 
COVID TIME
 
CBP Liaison Meeting (Los Angeles) – November 18, 2020
 
Returning LPRs must present the required documents for entry pursuant to 8 CFR 211.1. Per regulations, LPRs who have been out of the county for more than a year and less than two are required to present a reentry permit (Form I-1327) when seeking admission. CBP LAX does consider the totality of the circumstances when processing LPRs who have been out of the country for more than one year.
 
Note that those who have been out of the country for more than 2 years need to present SB-1 visa to enter as a returning LPR.
 
CBP Liaison Meeting (Miami) – September 4, 2020
 
CBP is currently following the same laws and policies that existed before COVID-19 regarding the processing of LPRs. There have not been any new laws, regulations, policies, etc. with respect to LPR processing since the onset of COVID-19. Therefore, LPRs who are outside of the U.S. for more than 6 months will be considered to be “seeking an admission” under section 101(a)(13)(C) of the Immigration and Nationality Act. However, CBP is aware of potential COVID-related barriers to travel encountered by LPRs who remain outside the country, and CBP will analyze each case in accordance with its particular facts.
 
Questions of potential abandonment of residency do not usually arise until the LPR has been outside of the U.S. for more than 1 year. A LPR and conditional resident (CR) who has remained outside the U.S. for longer than 1 year, or beyond the validity period of re-entry permit, will require a new immigrant visa to enter the U.S. and resume permanent residence. A provision exists under U.S. visa law for the issuance of a returning resident special immigrant visa (SB-1) to an LPR who remained outside the U.S. due to circumstances beyond his/her control.

SB-1 Tips

BIA/DOS Criteria 9 FAM 502.7-2(B) (CBP and SB-1)
  1. Purpose of departure
  2. Existence of fixed termination date for visit abroad.
  3. Objective Intention to return to the US as a place of permanent employment or actual home. Look at family ties, jobs, income tax returns, club memberships, mortgages, and more.
  4. Temporary Visit Abroad – Residency is not deemed abandoned if your visit abroad is temporary
  5. Continuous Uninterrupted Intent – Relatively long visits abroad will only be considered temporary if you provide evidence of your continuous uninterrupted intention to return to the US.
  6. The burden of Proof – After submitting an LPR status claim, DHS has the burden to prove abandonment by clear, unequivocal, and convincing evidence.

Required Documents (Review Country-Specific Instructions)

  • A completed Application to Determine Returning Resident Status, Form DS-117;
  • Your Permanent Resident Card, Form I-551;
  • Your Re-entry Permit, if available;
  • Supporting documents;
    • Dates of travel outside of the United States (Examples: airline tickets, passport stamps, etc.);
    • Proof of your ties to the United States and your intention to return (Examples: tax returns, and evidence of economic, family, and social ties to the United States);
  • Proof that your protracted stay outside of the United States was for reasons beyond your control (Examples: medical incapacitation, employment with a U.S. company, etc.).
  • Medical examination, including required vaccinations;
  • Form DS-260, Immigrant Visa and Alien Registration Application;
  • Preview a sample DS-260;
  • Original passport;
  • Two photographs, meeting Photograph Requirements
  • A list of civil documents to bring to your immigrant visa interview, as requested by the embassy or consulate
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FREQUENTLY ASKED QUESTIONS

Does SB-1 preserve residence for naturalization purposes?

SB-1 allows LPR to reenter the U.S. It does not confer any eligibility to apply for naturalization. LPR needs to need the continuous presence to be eligible for naturalization.

Should I submit an SB-1 or resubmit and immigrant petition (I-130/I-140) if I have been outside of U.S. for more than 2 years?

You may try for a CBP entry and/or an SB-1 with evidence existence of strong U.S. ties, and circumstances outside of control. If CBP and SB-1 both do not work then the only option is to file an I-130 or I-140 and wait until the priority date becomes current, if necessary.

How difficult is to apply for an SB-1 visa?

An SB-1 is easier to apply than an immigrant visa. Nonetheless, you will still need to appear at the embassy to make your case and explain why your extended absence should not be considered abandonment.

What happens if my SB-1 visa is denied?

Generally, if consular officer determines that you do not qualify for a SB-1 visa, then you would need to obtain a new immigrant visa.
 
You may also apply for a nonimmigrant visa. However, it would be extremely
difficult to obtain after an SB-1 is denied, because you need to prove that you have no
immigrant intent.

How long does it take to get a SB-1 visa?

The SB-1 visa processing time depends on the specific U.S. embassy or consulate where you are applying. You can generally assume at least a three to six months wait time, which is not take in consideration of the ongoing pandemic.

 

WHY HIRE US?

EXPEDITED PROCESS AND COMPLETE SERVICE

Clients need solutions and work done fast. Tsang & Associates is known as one of the few immigration law firms that can cut down the waiting time for a biometrics appointment to 10 days. We further make sure you receive the travel document after USCIS issued.

OUR SUCCESS STORIES FROM CLIENTS

Tsang & Associates has been a part of many success stories. We are proud to come alongside our clients and help them with their applications. For example, Hans Becker, who used our landing package to fulfill his dream of becoming a baker in the US. See his story.

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WHAT OTHERS ARE SAYING ABOUT US

Joseph and the whole team at Tsang & Associates are the best. I would've never thought a law firm would have such an inviting atmosphere and the most friendly and helpful staff.

I was hired to produce and film a few videos for the firm over a period of a few months. As I worked with Joseph and the team, I saw how much clients loved being in their office and how the team would bring exact solutions to their problems. From the delicious coffee and teas, to their professional, helpful, and easy to understand law advices, they have it all covered!

Best of all, because I too am filing hundreds of pages of immigration documents for my wife, I needed some guidance. Joseph was more than willing to help with free consultations! He reassured us in the process and definitely eased our minds in this important legal matter.

Seriously don't hesitate to give them a call. They are professional, knowledgeable, and most importantly they are passionate about helping people!

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Andy C.

Irvine, CA

A friend referred me to Tsang and Associates because I heard you could withdraw 401k without penalty during Covid-19. I wanted more guidance about this especially because I am trying to buy a house in the next 1-2 years. I was able to speak with Joseph and he advised me on this new policy and helped me plan out what steps to take to in order to make this possible. He also gave me sound financial advice on my plan to purchase a house. He even let me know what to expect in the next few years in terms of taxes. The best part is, all of this was done free of charge! Thank you!!

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Christina H.

Los Angeles, CA

I had the privilege of interning in the office to learn more about immigration law. I was deeply impressed by the attention to detail and care that was taken with each case. The whole process was done thoroughly and my supervisor, Joseph, was accessible and responsive to his client's needs and questions. It was an invaluable experience to see what a well run immigration firm looks like that cares about its clients and does excellent work. Highly recommend their services!

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Abby A.

Flower Mound, TX

I needed an immigration law firm to help me renew my green card. And I've found this firm nearby. I was amazed on how pretty the reception area is!
Jospeh explained the green card renewal process clearly and easy for me to understand. He also gave me a lot of advice on future immigration process. The overall experience is awesome! Highly recommended!

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Vicky C.

Monrovia, CA
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