A lawful permanent resident (LPR) who goes abroad must come back to the U.S. within a year in order to maintain his/her status. If the LPR intends to be outside the U.S. for more than a year, a reentry permit must be secured.
A reentry permit is obtained by filing Form I-131 with the USCIS before departure. It is valid for 2 years.
If the LPR remains abroad for more than a year or beyond the validity of the reentry permit, he/she may be considered as having abandoned his/her permanent resident status. To enter the U.S. and resume permanent residence a new immigrant visa will be needed.
An immigrant visa requires an approved immigrant visa petition based on family relationship or employment. But there is a law that provides for another option. The returning resident may obtain a special immigrant returning resident (SB-1) visa.
To qualify for this returning resident visa, the LPR has to prove that he/she was a lawful permanent resident at the time of departure from the U.S. and that he/she intended at that time to return and has not abandoned such intention.
In addition, the returning resident has to show that the protracted stay abroad was due to circumstances beyond his/her control and for which he/she was not responsible.
The State Department has recently issued guidelines for the processing of the application. The guidelines cover where to file the DS-117 (Application to determine returning resident status), how to process such applications, and how to create a permanent denial record.
The DS-117 must be accompanied by the green card or reentry permit, if available. The applicant must document the dates of travel outside the U.S., ties to the U.S., and intention to return to the U.S. The applicant must also prove that the protracted stay abroad was for reasons beyond his/her control.
Intention to return may be proven by tax returns and evidence of economic, family and social ties to the U.S. Dates of travel may be documented by airline tickets and passport stamps.
Examples of reasons why the protracted stay was beyond his/her control are medical incapacitation, employment with a U.S. company, and accompanying a U.S. citizen spouse.
A consular officer will conduct a personal interview of the applicant to determine if the DS-117 is approvable. If it is approved the officer will open a case in Immigrant Visa Overseas (IVO). If it is denied, the DS-117 application and all supporting documents and notes will be entered in the file.
Upon approval of the DS-117, the returning resident will proceed with an application for SB-1 immigrant visa. At the interview he/she will be subjected to medical and security screenings that apply to all immigrant visa cases.