Labor Immigration Law

United States Labor Immigration Law News and Analysis

I-131 Articles

SB-1 Returning Resident – What to Do When a Green Card is Abandoned?

Many U.S. lawful permanent residents (“green card holders”) who have to or choose to reside abroad are (or should be) aware that there are rules and restrictions on the time they can be outside of the U.S. and maintain their green card status.   Specifically, a stay outside of the U.S. of more than one year at a time without a reentry permit would cause automatic abandonment of one’s green card.   If this happens, there is still a procedure and a chance to seek to have the green card reinstated – this is the SB-1 Returning Resident application process.

Green Card Abandonment Rules

A green card holder who does not have a valid reentry permit and who has spent more than one year outside of the U.S. will not be allowed to enter the U.S.   8 CFR § 211.1(a).     In this case, the green card is considered to have been abandoned and the green card holder will require a new immigrant visa (if they are eligible to obtain one again by initiating a brand new green card process) to enter the U.S.      Alternatively,  the returning resident special immigrant visa allows green card holders who have remained outside of the U.S. due to circumstances beyond their  control to apply for reinstatement of the abandoned green card.

SB-1 Returning Resident Application Procedure

If the SB-1 Returning Resident application is approved,  this eliminates the requirement that a new green card petition be filed.    AS part of the SB-1 application process the green card holder will need to be interviewed for both the SB-1 application for returning resident status and usually later for the actual immigrant visa.   An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination.   There are visa processing fees and medical fees (plus attorney fees, if an attorney is involved).

Step 1.  Evaluate SB-1 Returning Resident Application.   The first step in the process is to evaluate and confirm that such an application is in fact required and what is the best way to approach the application in terms of presenting evidence to show that the extended stay outside of the U.S. has been due to extraordinary circumstances outside of the applicant’s control.   Evaluating and gathering documentation to demonstrate this is very important.

Step 2.  Prepare and File Application with U.S. Consulate.   The application, form plus application fees and supporting documents, is prepared and filed with a U.S. Consulate at least several months before the anticipated travel back to the U.S.    The Consulate will require an interview as part of the application process and the interview is likely going to focus on the reasons and circumstances causing the applicant to remain for more than one year outside of the U.S.

Step 3.   DS-260 and Medical Exam.   If the SB-1 application is approved, the Consulate will ask that the applicant submit a DS-260 form (used for immigrant visa applications), together with applicable fees and medical/vaccination records.    This step will ultimately result in the Consulate issuing and placing in the applicant’s passport anew I-551 (green card) stamp which would allow travel back to the U.S.

SB-1 Returning Resident Application Denial

If the SB-1 application is denied on the grounds that the applicant has abandoned or relinquished their residence in the U.S.,  the applicant may consider applying from the beginning for another green card (if they are still eligible) or they maybe able to file an application for a nonimmigrant visa (H-1B, B-1/B-2, etc.).

Factors for Successful Returning Resident Application

The key determination in an SB-1 Returning Resident application is whether the applicant was unable to travel to the U.S. due to extraordinary circumstances beyond his or her control.     The applicant for SB-1 Returning Resident Status must show:

  • That they were a lawful permanent resident when they last departed the U.S.,
  • That when they departed they intended to return to the U.S. and have maintained this intent throughout the period of stay outside of the U.S.,
  • That they are returning from a temporary visit abroad and that the extended stay was caused by reasons beyond their control and for which they were not responsible, and
  • That they are eligible for the immigrant visa in all other respects (such as criminal, health, etc. reasons).

In most SB-1 applications the main focus is on the reasons for remaining outside of the U.S. for extended period of time and how these reasons were outside of the applicant’s control.   A successful SB-1 application should be able to convince (an often skeptical consular officer) of the special circumstances by clear evidence.

Traveling Without SB-1 Approval?   Abandonment Can Occur Even After Travel to the U.S.

There are many green card holders who, intentionally or not, travel to the U.S. using their green card after having spent more than one year outside of the U.S. and without applying for SB-1 Returning Resident visa.    During U.S. Customs and Border Protection (CBP) inspection at the port of entry, some green card holders are confronted about their stay outside of the U.S. and many are placed in removal proceedings due to abandonment.

On the other hand, many people are admitted at the port of entry as green card holders without any further action at the port of entry.   However, an admission as a green card holder does not “fix” the abandonment issue.   It is possible, years after the fact, for the U.S. government to make a determination that the green card had been abandoned and to place the applicant in removal proceedings at that time.

When there has been stay outside of the U.S. and possible abandonment, we do not recommend traveling to the U.S. without first obtaining an SB-1 Returning Resident visa (perhaps after consulting an attorney to evaluate the situation in detail).

Conclusion

As described in this article, a green card abandoned by spending an extended period of time outside of the U.S.  is very difficult (and costly) to reinstate.   Our office always recommends erring on the side of caution and obtaining a reentry permit when there is possibility that a trip outside of the U.S. may take more than one year or if there will be a pattern of spending extended period of time abroad.     For those green card holders who are facing abandonment of their green card we would recommend carefully evaluating the type of excuses (and the supporting documents) which can allow an SB-1 Returning Resident application to be approved.

Our office has developed expertise in handling reentry permits and SB-1 Returning Resident applications in a variety of situations and we will be happy to analyze a particular situation and provide options.   Please give us some details for a free attorney reentry permit case review and options or feel free to contact us with any other questions or concerns.

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Biometrics Codes and Reusing/Transferring Biometrics

Many of our clients and readers are familiar with the requirement to submit to biometrics (digital fingerprinting and/or photograph, please see below) in connection with certain USCIS applications.    The biometrics are often taken at USCIS Application Support Centers (ASC) after a notice, showing a specific ASC address and appointment date/time, is issued and mailed to the applicant.

Among the most common USCIS application types which require biometrics are I-485, Application to Adjust Status, I-131, Application for Travel Document (Reentry Permit) (please see our specialized Expedited Reentry Permit site), and I-90, Application to Replace Permanent Resident Card.   Our office handles a fair number of these applications and we hope to provide some additional background on the biometrics process.

Biometrics Codes

Normally, an ASC Biometrics Notice would contain (in the top right area), a field named “Code.”    The “Code” field is intended to indicate the type of biometrics processing to be performed.  The possible values are:

  • Code 1 – fingerprinting only (10 prints);
  • Code 2 – biometrics (photo, signature and index finger);
  • Code 3 – fingerprints (10 prints) and biometrics (photo, signature and index finger).

USCIS has indicated that the applicable code for each biometrics appointment is determined based on the type of an application and certain relevant case factors.

Reusing/Transferring Biometrics Across Applications

A question which arises often with respect to some applicants is whether USCIS can reuse biometrics for different types of applications.   Some examples are a reentry permit applicant, who needs to renew his or her green card, or for I-485 adjustment applicant who need to apply for a reentry permit soon after I-485 approval.

The government has confirmed that they are indeed willing and able to transfer biometrics across applications; however, such flexibility is available only to military service members and their families who have unique situations regarding deployment, moving, and living overseas which affect their ability to provide fingerprints and fulfill the background check requirements.    This authority is provided by the Kendell Frederick Citizenship Assistance Act, enacted on June 26, 2008, requires USCIS to use fingerprints taken for previous immigration purposes or fingerprints provided during military enlistment to complete the required naturalization fingerprint check.

Can Biometrics Be Waived?

Unfortunately, USCIS is very clear that the collection of biometrics cannot be waived with very limited waivers available for certain medical conditions (generally, medical conditions which affect the applicant’s ability to do the biometrics).

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USCIS Starts Issuing a Single Combined EAD/Advance Parole Card

There have been rumors and speculation on this topic (which we did not report until we had final confirmation), but now it is official.  USCIS has announced that they will start issuing a combined Employment Authorization Document (EAD) and Advance Parole (AP) card for some applicants for adjustment of status.

Sample Combined EAD/AP CardThe new combined EAD/AP card (I-766) looks like this sample image and has an annotation at the bottom reading “SERVES AS I-512 ADVANCE PAROLE.”    The new card would replace the paper-based (and often easy to damage) Form I-512 Advance Parole documents which one had to obtain under the previous guidance.

Who Would be Eligible to Obtain the New EAD/AP Card?

Not all I-485 adjustment of status applicants who also wish to obtain an advance parole would receive the new card.  According to USCIS, an applicant may be issued this card when he or she applies a I-765, Application for Employment Authorization and I-131, Application for Travel Travel Document concurrently with or after filing Form I-485, Application to Adjust Status.   Separate EAD and AP documents will still be issued for all other applicants.

Procedures for Using the New EAD/AP Card

The new EAD/AP card will continue to be an accepted employment authorization document as a List A document when completing Form I-9.  Holders of the new card can also use it to return to the U.S. as parolees after a short travel abroad without abandoning the pending I-485 adjustment application.  The holder of the EAD/AP card must present it at the port of entry to request that he or she be admitted as parolee.   As a result, it is important that holders of this card continue to follow closely its expiration and prepare timely renewal applications (at least 90 days in advance).

Our practice includes handling EAD and AP applications for I-485 adjustment of status applicants so please do not hesitate to contact us if our office can be of any help or if you have any questions.

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Delays in EAD/AP Processing – What To Do?

It is not a secret that USCIS’ processing times of I-765 work permit documents (“EAD”) and I-131 advance parole travel documents (“AP”)  have increased over the past few months.  Our office has experienced some of these delays and our office is increasingly approached by EAD/AP applicants who have either expiring EADs or need to travel urgently abroad and whose EAD/AP applications have been pending for substantial period of time.

As a preliminary matter, we always recommend that EAD/AP renewal applications be filed 90-120 days between the expiration of the document to be renewed.  Unfortunately, often this is not possible and the government has provided some options.  Also, it is important to note that unlike renewal of nonimmigrant work visas (such as H-1B), the filing of an EAD application does not permit employment until the EAD is actually approved.

Expediting I-765 EADs Pending for Extended Period of Time

By regulation, USCIS is required to produce the EAD cards within 90 days; however, current processing times are starting to approach that deadline (75 to 80 days is now frequent).  This can be especially difficult for foreign nationals who do not have an underlying nonimmigrant work status (such as H-1B) and who need to continue their employment pursuant to an expiring EAD.  The Nebraska Service Center (“NSC”)  recognizes that the processing times have increased substantially and that this is creating a hardship for many individuals who whose employment authorization is expiring.  NSC is working on improving the processing times of I-765 EAD applications; in the meantime, there are circumstances under which EAD processing can be expedited.

If the I-765 application has been pending more than seventy-five (75) days, applicants (or their attorney) can notify NSC through NCSCFollowup.Nsc@dhs.gov.   It is important to note that normally USCIS requires the applicant (or the attorney) to call the 1-800 number and make a case inquiry.  In this case (and only for this issue), however, the requirement to first call the 1-800 number for the National Customer Service Center (NCSC) is waived.   The email inquiry must include the following details: the name of the applicant, the receipt number, the date filed, and the date of the prior EAD expiration.

If the I-765 application has been pending for more than sixty (60) days, the current EAD will expire within the next two weeks, AND the individual will lose their job (a leave of absence is not considered a loss of the job), an inquiry can be made directly to NSC though NCSCFollowup.Nsc@dhs.gov, after sixty days.   In addition to including the information mentioned above, applicants (or their attorneys)  should provide appropriate evidence to demonstrate that the applicant meets these criteria.

Expediting I-131 APs Pending for Extended Period of Time

USCIS currently follows its regular expedited processing procedures with respect to APs.   Additionally, it should be noted that foreign nationals who depart the U.S. without an approved AP, or valid H-1B, H-4, L-1, L-2, K-3, K-4, or V status, may be subject to an abandonment of their I-485 Adjustment application under 8 C.F.R. 245.2(a)(4).

How Our Office Can Help You?

Initially, by strongly urging you to file your EAD/AP application as early as possible, and in the best case, at least 90 but not more than 120 days before the expiration of the underlying document.  If this is not an option, our office can help you expedite an already filed document or we can file the application and then, at a later time, help you seek expedited processing.  Please do not hesitate to contact us if our office can be of any help.

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ASC Biometrics Notice Codes

Our office often receives inquiries by clients about a piece of information displayed on the ASC Appointment Notices issued for the purpose of capturing biometrics.  Our clients are asking us what is the meaning of the “Code” field, found in the top right part of the ASC Appointment Notice.

The “Code” field is intended to indicate the type of biometrics processing to be performed.  The possible values are:

  • Code 1 – fingerprinting for 10 prints only.
  • Code 2 – photo, signature and index finger press-print;
  • Code 3 – photo, signature, index finger press-print and fingerprinting for 10 prints.
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USCIS Lockbox Procedure Adds to Expedited Reentry Permit Processing Time

Starting December 2009, USCIS started implementing changes on the way I-131 reentry permit applications are receipted and processed.   Previously, I-131 reentry permit applications were filed directly at the Nebraska Service Center (NSC) which issued receipts and, where appropriate, issued expedited processing biometrics notices.

The NSC processing of expedited processing reentry permit biometrics allowed us to have the required biometrics scheduled often within 7-10 days after filing of the I-131 reentry permit application.  This way we were able to accommodate clients who had a very limited period of stay in the U.S.

The New I-131 Reentry Permit Acceptance Procedure Delays Biometrics

Under the new procedure, all I-131 reentry permit applications are now filed at a USCIS lockbox.  The purpose of the lockbox is to accept the application and do initial processing such as issuing a receipt.  Following the initial processing, the case is transferred to the service center tasked with processing the reentry permits – NSC.

Only after the lockbox center forwards the I-131 reentry application to NSC the expedited processing biometrics appointment can be issed.  This adds an additional week or so of processing and scheduling a biometrics notice.

In light of these changes, we have had to advise our I-131 reentry permit expedited processing clients to adjust their travel accordingly and to plan on being in the U.S. 3-4 weeks (up from 2-3 weeks) to be able to accommodate their required biometrics appointment while in the U.S.

Unfortunately, USCIS has indicated that they intend to use the lockbox for the future and we do not foresee any improvement in the processing times or the efficiency of the expedited reentry permit application procedure.  USCIS has indicated that they are exploring ways to be able to process biometrics abroad; however, as of today, the biometrics can be done only in the U.S.

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Reentry Permit Validity Periods

Our office has been handling an increasing number of expedited processing Form I-131 reentry permits for legal permanent residents (“LPR”) who are or are planning to spend extended periods of time abroad and who wish to maintain their legal permanent resident status.

Reentry Permits Are Generally Valid for Two Years

One of the questions we receive very often in connection with the reentry permit applications is what would be the duration of the reentry permit, once issued.   For most of the applicants, the answer is that the reentry permit is valid for two (2) years starting from the date on which the reentry permit is issued.

But One-year Reentry Permits Are Given for Extended Absenses

However, pursuant to 8 CFR 223.2(c)(2), an LPR who, since becoming an LPR or during the past five (5) years, whichever is less, has been outside of the U.S. for more than four (4) years in the aggregate will be issued a reentry permit with validity of only one (1) year from the date of issuance.

There are exceptions.  If the LPR is employed by public international organization of which the U.S. is a member or is a professional athlete, then the reentry permit can be issued for two (2) years despite extended periods of absence from the U.S.

Conclusion

The restriction described above on the validity of reentry permits makes it important for some applicants to be able to calculate the aggregate amount of time spent outside of the U.S. for the past five years (or since becoming LPR).  Such applicants should also make plans to renew their reentry permit within one year of issuance.

Please visit our Reentry Permit and Expedited Processing page for more information.

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Rules for Rescheduling Biometrics Appointments for Reentry Permit Applications

Our firm has developed an unique expertise in processing expedited reentry permit and travel document applications.  Such applications are processed by the Nebraska Service Center (“NSC”) and in our experience, if the expedited processing request is granted, the biometric appointment may be scheduled in as little as 10-14 days.   However, even with these expedited processing timelines, sometimes the biometrics appointments may need to be rescheduled.

NSC has revised the rules for requesting rescheduling of biometrics.  NSC has indicated that they will deny all applications  where the applicant’s biometrics/fingerprinting have not been accomplished within the first 120 days of filing.  Applicants must appear for biometrics by their appointment date or request rescheduling prior to their appointment date.  The request for rescheduling must be accompanied by a reasonable excuse for failure to appear for the routinely scheduled biometrics appointment.

30-Days Permitted.  When making rescheduling requests, it is important to know that the application support centers (“ACS”) cannot reschedule the dates for more than 30 days and are instructed to provide applicants with a reschedule date within the 30-day time frame from the time of the reschedule request.   A rescheduling request seeking appointment for more than 30 days into the future will receive only up to 30 days.

Denials for Failure to Reschedule or Attend Within 120 Days.  Applicants who go overseas after filing the reentry permit/travel document application without completing the biometrics appointment and who do not timely file a request for their biometrics to be rescheduled will likely face a denial.  Also, NSC has advised that applicants should follow-up on their reschedule request to ensure that they are actually rescheduled.   Additionally, NSC has indicated that applicants who ask for rescheduling several times (which is ok) but never complete the biometrics within 120 days of the initial I-131 filing date will face a denial.

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Guidance on Expedited Re-entry Permits (Form I-131)

The National Service Center has provided some guidance on requesting expedited processing of re-entry permits (Form I-131) to clarify the reasons for requesting expedited processing.  According to NSC, valid expedited reasons are humanitarian reasons, financial loss, medical need, etc.

We have received many re-entry permits inquiries by permanent legal residents who are about to accept a job opportunity abroad and are interested in obtaining their re-entry permit using the expedited procedure.  In the recent guidance, NSC has confirmed that working and residing overseas is sufficient reason for requesting an expedited biometric processing.  We have been successful in obtaining a number of expedited processing re-entry permit applications and the NSC guidance confirms our experience.

There are approximately 200 expedite requests per day received by USCIS and most of the biometric appointments are scheduled within a few days to a week after receipt of the application.  For comparison, regular processing re-entry permits have biometric appointments scheduled  within 4 to 6 weeks.

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Re-Entry Permit Filing Requires Physical Presence in the U.S.

An AAO decision was released recently which commented on whether it is required for a petitioner who has filed a Form I-131, application for re-entry permit to be physically in the country when the application is filed.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.

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