COVID-19 has impacted U.S. permanent residents and conditional permanent residents who traveled abroad and found themselves unable to return to the United States in a timely manner. While U.S. permanent residents are not subject to the travel restrictions and Presidential Proclamations banning travel, they are at risk of abandoning their green card status if they remain outside the United States too long. U.S. lawful permanent and conditional residents may be considered to have abandoned their legal status if they are absent from the United States for more than one year, or stayed beyond the validity of their conditional permanent resident card, advanced parole or re-entry permit (issued for 2 years).
While there have been no announcements or policy issued protecting U.S. lawful permanent and conditional residents from losing their legal status because of COVID-19-related prolonged absences from the United States, these individuals may be able to apply for a returning resident visa (SB-1) to come back and resume their lives in the United States. U.S. law provides for the issuance of returning resident visas to U.S. lawful permanent and conditional residents who stayed outside the United States due to reasons and circumstances beyond their control. These circumstances are evaluated on a case-by-case basis and may include, among others, pregnancies, severe medical problems, employment with a U.S. company, etc.
To qualify for a returning resident status, the applicant must demonstrate that they were a lawful permanent resident at the time of the departure from the United States, left the country with the intent of coming back, and is returning to the United States from a temporary visit abroad, which took longer than anticipated because of reasons beyond the person’s control.
The application process for a returning resident visa takes place at the nearest U.S. embassy or consulate, and it consists of two steps. The first step requires filing form DS-117, Application to Determine Returning Resident Status, with supporting documents. The supporting documents should include evidence that the applicant has had ties to the United States during the stay abroad. These ties may be financial, family, employment, property ownership, taxes etc. Only after the U.S. consulate determines that an applicant qualifies for the returning resident status, the applicant can then move on to step two, which involves submission of an immigrant visa application. This immigrant visa aims to establish that the returning resident is otherwise admissible to the United States. Medical examinations, police certificates, and evidence of financial stability, are generally required at this stage.
Returning resident visas are not granted automatically and they take time before they are adjudicated. As such, it is important to apply ahead of time, if possible. This is especially important now when consular services are disrupted by the pandemic and appointments are limited. Due to a risk of denial and the consequences stemming from potential loss of lawful permanent status, SB-1 applicants should consider seeking immigration advice to help with the process and avoid any adverse decisions.
At Wilner and O’Reilly, we are mindful of the many fears and anxiety experienced by our immigrant clients. We keep informed of many changes in immigration law and procedures so we can safely and efficiently guide clients through the complex immigration system. We offer free consultations at our offices in Orange, Riverside, Fresno, San Diego, Sacramento, and San Bruno, California; Salt Lake City and Orem, Utah; and Boise, Idaho.
AGNIESZKA (AGGIE) DOLINSKA
MANAGING ATTORNEY – RIVERSIDE
Aggie DolinskaAggie Dolinska is the Managing Attorney at the Riverside Office of Wilner & O’Reilly. She is Board Certified as a specialist in immigration and nationality law by the State Bar of California’s Bureau of Legal Specialization. Ms. Dolinska’s immigration practice involves all areas of Immigration and Nationality Law, including family and employment-based immigration, non-immigrant visas, removal defense, litigation, and asylum law. Ms. Dolinska is currently the head of the litigation and deportation department in our office. Her removal defense practice includes representing clients in proceedings before the Immigration Court and on appeal with the Board of Immigration Appeals and the Court of Appeals for the Ninth Circuit.
Ms. Dolinska graduated magna cum laude from Boise State University in 1998 with a Bachelor of Arts degree in Criminal Justice Administration and minor emphasis on drug and alcohol studies. She earned her Juris Doctor degree in 2001 from Brigham Young University, where she was a senior editor of the BYU Education and Law Journal and a member of the International Moot Court and American Inn of Court No. 1. While in law school, Ms. Dolinska worked as a legal intern for the Ada County Prosecuting Attorney’s Office in Boise, Idaho, and completed a summer externship with Judge Daniel T. Eismann of the Idaho Fourth District Court in Boise. Ms. Dolinska also participated in the Woody Deem Trial Advocacy Competition and Jessup International Moot Court Competition. Prior to her practice in immigration law, Ms. Dolinska practiced civil ligation in Utah.
Ms. Dolinska is admitted to both the State Bar of California and the State Bar of Utah. She is also admitted to the United States District Court for the Central District of California and the U.S. Court of Appeals for the 9th Circuit. She is also a member of the Orange County Bar Association and J. Reuben Clark Law Society, Orange County Chapter.
As a native of Poland, Ms. Dolinska has had personal experiences with the immigration system in the United States. Because of those experiences, she offers a unique perspective and understanding to the clients of Wilner & O’Reilly. Ms. Dolinska is fluent in English and Polish.