In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
1) QUESTION: I had a green card and lived in California for approximately five years. In 1979 my parents and I moved back to Brazil. I had no intention to stay in Brazil, but at that time, I was 15 years old and could not return to the States on my own, so I stayed in Brazil. I have lived in Brazil for the past 36 years. Can I renew my green card?
ANSWER: Because you have been out of the U.S. since 1979, 36 years, I don’t see any chance of USCIS agreeing that you have intended to keep the U.S. as your permanent residence this whole time, and so I do not see that you would be able to obtain an SB-1 Returning Resident visa. Sometimes a minor who is taken abroad by parents can obtain an S-B1 visa when they become an adult, but you continued to live abroad well into your adulthood, so that does not apply to you.
The fact that you have had U.S. permanent residence in the past should not negatively affect future visa applications to the U.S. But if you want to move back to the U.S., you will either need a nonimmigrant (temporary) visa or an immigrant visa (to come to the U.S. as a Permanent Resident).
2) QUESTION: My dad got his green card a few years ago. Being in his 70s, he went back to Hong Kong often. Last time he obtained a reentry permit and came back to the U.S. with no problem, after being away for more than a year. Now he has been away for about a year again without a reentry permit. He doesn’t want to give up his green card. If he just wants to come to the U.S. for a brief visit, can he just apply for a visitor visa at the embassy? I know there is a “Returning Resident Visa” but he doesn’t want to go through that if he doesn’t have to.
ANSWER: If he has been outside of the U.S. for less than one year, then he should make a point of returning to the U.S. within the one year, which he can do with his green card, even though he doesn’t have a reentry permit. Although I would recommend that he apply for a new reentry permit when he gets to the U.S.
If he has been outside the U.S. continuously for more than one year, and he does not have a valid reentry permit, then he will need to apply for an SB-1 Returning Resident Visa through the appropriate U.S. embassy or consulate.
The embassy or consulate will not grant him a B-2 visitor visa without first requiring him to formally abandon his U.S. Permanent Resident status. So if he does not want to give up his green card, he will need to return to the U.S. within the one year or apply for an SB-1 Returning Resident Visa. Otherwise, he can formally give up his green card and apply for a B-2 visitor visa, if he is eligible to receive one. If he does not give up his green card, and he later decides he wants to become a U.S. Permanent Resident again, he will need to go through the entire process of being sponsored and obtaining an immigrant visa.
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