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SB-1 Visas and Maintenance of Permanent Residence

Transcript of the above video:

In this video we are going to be discussing the SB-1 specifically in the context of maintenance of residence in the United States. So first of all let me just preface this video by saying we have another video that discusses the details of the SB-1 specifically on this channel. I recommend checking that out. But in that video, just real quickly,  the SB-1 is a visa that’s designed for those who could fall into the trap of presumption of loss of residence, presumption of abandonment of residence in the United States by coming back because they’ve been abroad too long. Those folks can seek an SB-1 visa to sort of allay those issues, put those issues to bed, before even returning to the United States. I urge those who are interested in more information regarding the SB-1 to check out the other video on this channel specific to that travel document in detail.

What I am talking about here today are issues pertaining to maintenance of residence because this comes up a fair amount. I get a lot of questions actually with respect to presumption of maintenance of residence in the United States. And here’s basically the breakdown of how I like to sort of look at it.

First of all, the underlying issue is this. Even if one has green card status, lawful permanent residence, if one just stays in the United States for a long period of time, forever, in permanent residence, that’s fine, there’s no issue there.  It’s when one travels abroad that the presumption of abandonment of residence can be raised. It’s not going to be raised by taking a 1 week trip to Mexico on a cruise or taking a month long vacation to South East Asia or wherever else somebody wants to go. What we’re talking about here is prolonged periods of time. USCIS itself, Department of Homeland Security, and US Customs and Border Protection, the law as well and the regulations pertaining thereto, are not overly clear as to at what point exactly in time presumption of residential abandonment “kicks in”, if you will. And for that reason, it’s somewhat difficult for people, and they have a lot of questions. People get uneasy and I totally understand this especially if they have a loved one, a spouse or children who are in lawful permanent resident status and due to unforeseen issues in their lives they are called overseas, or they go overseas and then what they thought was going to be a 2 week trip for business turns into a job that was unforeseen that results in a year and a half of physical presence outside the United States. This is why the SB-1 exists first of all. It’s to deal with those folks that have fallen out, not fallen out but that have gone so far time wise that it is really is possible that trying to get back into the United States Customs and Border Protection may stop them and say, “hey, what are you guys doing?”  You have been abroad for 6 ½ years! Are you a resident of the United States or are you not?” That’s really what the question boils down to, if you will.

The second thing with respect to this, is trying to forestall it. So the SB-1 can deal with the back end where you’ve had an unforeseen event occur oversees that’s prolonged one’s stay abroad and you go in and deal with that with an SB-1, go check that out. Another way of dealing with this is by forestalling the problem or dealing with it on the front end by getting a reentry permit prior to leaving the United States; reentry permits are issued for 2 years. It’s kind of like a little passport book. It allows that person to be abroad without raising the presumption of residential abandonment during that 2 year period which is a way of forestalling it.  There’s another video that goes really deep into re-entry permits on this channel I recommend those who are interested in that to go over and see that video.

Just getting into the residential maintenance thing, I have people ask me questions all the time, “we want to spend time in Thailand, we also want to spend a significant chunk of time in the United States”. I will say it is hard to delineate what’s considered residential abandonment. A couple of months out of the given calendar year spent abroad, I don’t think that gets you there; to the presumption of residential abandonment. Years abroad, yeah. Where the line is, it is somewhat subjective on the part of the officer adjudicating these matters, but that being said, I think common sense can kind of prevail sometimes. You know if you’re maybe even thinking that this could be an issue, you really should be talking to an immigration professional such as myself or such as someone who is licensed and deals with US Immigration matters to go ahead and ascertain, ”look, this is sort of my circumstance, these are sort of the outside possibilities and these are the more likely possibilities, and an immigration attorney is going to be able to say “look under the circumstances, you might want to go ahead and think about a re-entry permit” or “maybe you don’t need it”.  “It’s getting close to the line, but it’s pretty clear that your residence is being maintained in the United States”. Oftentimes, other sort of tertiary evidence is good. Things like maintaining a dwelling in the United States or continuing to be paid on shore in the United States, those kind of things can kind of show that “yeah, I have been abroad but my base, my residence remains the USA”.  I am not trying to be purposely vague in this video but what I did want to get to a point on is, that there are no clear lines, there’s no bright line rule with “Okay, day 448, you are within non presumption of abandonment but 449, it’s presumed”. That’s not how it is. It is sort of a holistic approach, looks at the totality of the circumstances associated with one’s, both trip abroad and one’s circumstances in the United States I think and they make it a determination sort of case by case which can be frustrating but that being said, there are ways to forestall the problem and if one thinks that they’ve been abroad too long, there are ways to forestall it with respect to going back into the United States, most notably the SB-1 Visa category.