A permanent resident who has remained outside the United States for longer than one year, or beyond the validity period of a Re-entry Permit, will require a new immigrant visa to enter the United States and resume permanent residence. There is a returning resident special immigrant visa called the SB-1. It is available to a permanent resident who remained outside the United States for too long due to circumstances beyond his/her control. Medical issues or family emergencies would be examples of “circumstances beyond your control”. If there were no special conditions which kept you from returning to the US on time, then it may be necessary for a family member to file a new immigrant visa petition for you.
If the application for returning resident status is approved, this eliminates the requirement that an immigrant visa petition be filed on your behalf. You will need to be interviewed for your application for returning resident status, and later for the immigrant visa. An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination. Therefore, this involves paying both visa processing fees and medical fees.Step 1 - Qualifying for Returning Resident Status: To qualify for returning resident status, you will need to prove to the Consular Officer that:
- You were a lawful permanent resident at the time of departure from the United States;
- You departed from the United States with the intention of returning and have not abandoned this intention; and
- You are returning to the United States from a temporary visit abroad and, if the stay abroad was too long, this was caused by reasons beyond your control and for which you were not responsible.
It may take 2 or 3 months to be processed for a Returning Resident visa. It cannot be obtained quickly because it is necessary to be scheduled for an interview at the U.S. Consulate. When applying for a Returning Resident (SB-1) immigrant visa, you will need to submit the following to the Consulate:
You must also submit supporting documents that show:
- A completed Application to Determine Returning Resident Status, Form DS-117
- Your Permanent Resident Card, Form I-551
- Your Re-entry Permit, if available
- 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, family emergency in Vietnam, employment with a U.S. company, etc.)
Fees are required for the DS-117 Application to Determine Returning Resident Status, and for Form DS-260 application processing fee, as well as for the Medical exam and vaccination fees. Currently those fees would total about $600.
If the consular officer determines that you do not meet the criteria for a Returning Resident (SB-1) immigrant visa because you have abandoned or relinquished your residence in the United States, there are two options. It may be possible to obtain a nonimmigrant visa, such as a B2 just to visit the US, if you have established a residence in Vietnam to which you will return. If you cannot submit convincing evidence of compelling ties to Vietnam for the B2 visa, you may have to ask your original immigrant visa sponsor to file a new immigrant visa for you, with a new priority date and new waiting time.
Q.1. If I have a re-entry permit that allows me to be outside the States for more than a year, do I need to file a tax return for that year, or if I file, can I claim to be a non-resident of the US?A.1.
Yes, you must file a tax return, and No, you cannot claim to be a non- resident. Having a Green Card means you are a permanent resident of the US, so you are responsible for paying income tax no matter what country you live in. You must pay US tax on income received world wide, unless you already pay foreign tax.
Q.2. Can a permanent resident maintain US resident status when working for a US company abroad? A.2.
Yes, under certain conditions. He must be a permanent resident for one year before taking a job abroad. The employer in Vietnammust be a subsidiary of a U.S. company.
Q.3. An unemployed permanent resident leaves the US with wife and children, closes his US bank account, goes to live in Vietnam to work for his brother’s company. He does not file US tax returns. Three years later he is offered a job in the US. What will the US Consulate say if he applies for a Returning Resident visa? A.3.
He clearly abandoned his US residence for three years. If he submits his Green Card at the Consulate to apply for a Returning Resident, the Consulate will probably keep his Green Card and suggest that he find an eligible family member in the US to file a new visa petition for him.