Question:
“I’m writing for my cousin. She lived with her parents, my uncle and aunt, in the United States when she was small. All of them had green cards and social security numbers. At the time, my cousin did not know what they were for. Before she turned 10, they moved back to Italy. Now, she is her early 20s. She wants to live in the United States. But she thinks her green card is not valid any longer. Can she return as a permanent resident?”
(Submitted by Alice U., Palm Desert, CA)
Answer:
The answer to your question depends on many different factors.
The general rule is that once immigrants are given green cards, they are required to keep the United States as their main residence. They are supposed to live in the U.S. at least six months out of each 12 month-period.
Remaining outside for longer periods of time can lead to problems.
For instance, if they leave the country for over one year, the U.S. government is likely to classify their long departure as an abandonment of their green card status. Once that happens, they’ll be stripped of their residency status.
This is the situation facing your cousin.
It is possible for permanent residents to avoid this outcome. It requires planning ahead.
In most cases, your cousin will likely need the assistance of a immigration lawyer.
Here’s how it works.
If an immigrant knows she will live outside the U.S. for more than a year, she can apply for a re-entry permit before leaving. This is common for individuals who go abroad for work or school purposes. This permit is good for up to two years at a time, and can be renewed.
This means your cousin needs to discuss some important issues with her parents.
- Why did her father and mother first enter the U.S. and why did they leave?
- Why and when did they decide to remain in Italy?
- Did they ever apply for a re-entry permit?
- If so, how many times did they renew their application?
Her situation, however, is a little different than her parents. This may help her.
After all, she was a minor child who did not have any choice in her entry to and departure from the U.S.
Unlike her parents, she might be able to assert she never abandoned her U.S. residency because she never made the conscious decision to live in Italy.
As a result, even if your uncle and aunt never applied for a re-entry permit, she may be eligible for what is known as a returning resident (SB-1) immigrant visa.
Under the rules for an SB-1 visa, your cousin will need to prove her stay in Italy was caused by reasons beyond her control and she was not responsible. This will allow her, if successful, to return as a lawful permanent resident.
To go this route, you should ask her about when she learned about her former resident status and when she decided to return to the U.S.
Why?
Let’s say she is only 22 years old, and she was told about her old green card status two years ago. These facts would likely make her case easier to win than if she is 25 and she found out when she 18.
To apply, she will have to file her paperwork and documentation at the American Embassy or Consulate nearest to her current residence in Italy.
One more point. Even if her SB-1 application is denied, all may not be lost. She could start over again if she has another way of qualifying for permanent residency.
This means she would have to go through the permanent residence process again and get in the back of the line as she waits, perhaps several years, for a new priority date. Of course, she would have to pay all the filing fees over again as well.
Nobody wants that.
As you can note, these types of cases are much harder than they seem at first blush.
I encourage your cousin to consider hiring an attorney in the United States, familiar with permanent residency rules, to help her.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Green Cards And Permanent Residence Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
