What if we're not in the U.S. at the time?

[DanKearney 0]

Greetings All,

I'ts been a wonderful year-and-a-half not having to deal with any immigration processes. The clock is ticking however, and my wife's two-year anniversary comes up in the middle of May 2009. I've got a couple of questions that I haven't seen addressed in any of the other posts or the FAQ and of course not on the USCIS website. I'm hoping someone else has already gone through the same process and might know. So here goes:

1. I'm pretty sure one cannot submit the I751 more than 90 days before the 2 year anniversary date. Is that correct?

2. We're going to travel back to China for a month or so next year, probably in late March or as late as late May. I'm concerned that my wife will be required to be in the U.S. to attend the biometrics appointment during this time. Is there any way to either do the biometrics before we leave, without an appointment, or is it possible to have that done at a consulate or embassy in China?

3. If I understand correctly, the complete process is:

a) We submit I-751, fees, and supporting documentation.

B) We receive a NOA letter from USCIS verifying receipt of the I-751, etc. This NOA is valid to show legal residency in the U.S. should the Removal of Conditions process go beyond the 2 year anniversary date. Is that correct?

c) We will receive an appointment to go in for the biometrics.

d) We "might" receive an appoinment for a joint interview.

e) Determination will be made and we'll receive the offical approval or disapproval.

4. My wife is currently interviewing for a new position that would post her back to China to work. She might be in China at the time her current provisional Green Card expires. Will she be allowed to travel back to the U.S. after her two year anniversay date so long as she has her expired Green Card and the NOA from USCIS documenting that we've applied for the Removal of Conditions?

Thanks again to everyone for your invaluable help and opinions.

Cheers,

Dan K.

Black Hawk, CO

[Kathryn41 3,205]

Greetings All,

I'ts been a wonderful year-and-a-half not having to deal with any immigration processes. The clock is ticking however, and my wife's two-year anniversary comes up in the middle of May 2009. I've got a couple of questions that I haven't seen addressed in any of the other posts or the FAQ and of course not on the USCIS website. I'm hoping someone else has already gone through the same process and might know. So here goes:

1. I'm pretty sure one cannot submit the I751 more than 90 days before the 2 year anniversary date. Is that correct?

correct - 2nd anniversary of the greencard, not the marriage.

2. We're going to travel back to China for a month or so next year, probably in late March or as late as late May. I'm concerned that my wife will be required to be in the U.S. to attend the biometrics appointment during this time. Is there any way to either do the biometrics before we leave, without an appointment, or is it possible to have that done at a consulate or embassy in China?

you need to have the biometrics letter in order to get the biometrics done. You may be able to do a walk in appointment if the scheduled time isn't convenient, or you may be able to reschedule. You can't do the biometrics out of the country. You do have the option on the form to submit passport photos - you might want to read over the application form and its instructions.

3. If I understand correctly, the complete process is:

a) We submit I-751, fees, and supporting documentation.

B) We receive a NOA letter from USCIS verifying receipt of the I-751, etc. This NOA is valid to show legal residency in the U.S. should the Removal of Conditions process go beyond the 2 year anniversary date. Is that correct?

not quite. You submit the application form prior to your green card expiring. Your greencard will probably expire before your I-751 is processed. The NOA extends the validity of the greencard for another year anticipating that your I-751 will be processed within that year.

c) We will receive an appointment to go in for the biometrics.

Yes, usually for about a month after the submission date

d) We "might" receive an appoinment for a joint interview.

Yes

e) Determination will be made and we'll receive the offical approval or disapproval.

Correct - although you may also receive a request for more evidence before either decision (RFE)

4. My wife is currently interviewing for a new position that would post her back to China to work. She might be in China at the time her current provisional Green Card expires. Will she be allowed to travel back to the U.S. after her two year anniversay date so long as she has her expired Green Card and the NOA from USCIS documenting that we've applied for the Removal of Conditions?

You might want to think seriously about this course of action. If you move to live in another country - and it is difficult to commute to China from the US - you effectively cancel your greencard. You need to be living in the US, not another country, in order to maintain permanent residency. If the position is only temporary and she still lives in the US, yes, she will be allowed to re-enter the US with her expired greencard and her NOA. If she moves to China to accept a permanent position, she is no longer a permanent resident in the US and is no longer allowed to live in the US. Please think carefully about accepting any type of permanent position outside of the US as you would have to start the immigration process over again from the beginning if you wished to return to the US. Also, she is allowed to be outside of the US without a problem for up to 6 months as long as she is still living in the US - and may be required to prove her ties. If her temporary position outside of the US looks like it will be for longer than that she needs to obtain a re-entry permit prior to leaving the US in order to be allowed back in. There are also time limits on how long she is allowed to be out of the country even with a re-entry permit. It may be as little as 1 year and as much as 2 years, but she needs to maintain permanent status in the US by maintaining ties here (an address, etc.)

Thanks again to everyone for your invaluable help and opinions.

Cheers,

Dan K.

Black Hawk, CO

Edited December 7, 2008 by Kathryn41

[DanKearney 0]

Kathryn,

Thanks for the information, that helps me to ensure I understand the process properly.

Yes, I know about the issues involved if we move to China. I know of a number of other Chinese nationals with U.S. green cards who essentially live and work in China, but maintain their green cards because they own a home in the U.S. (As I and my wife do) and they return to the U.S. every 6 months for about 2 weeks. They've been doing this for at least 8 years and the USCIS has never questioned it.

Anyone else out there heard of this scenario? I'd be curious to hear of others experience.

Also, referring to the extension of one's Green Card. What document does the USCIS provide to show that the Green Card's expiration date has been extended. I thought it was an NOA letter?

Cheers, and thanks for the help.

Dan K.

Edited December 7, 2008 by DanKearney

[YuAndDan 153]

1) No more than 90 days before 2 years of LPR status (CR-Green-Card expiration)

2) Sometimes USCIS ASC will do the biometrics for walkins if you have the bio appointment letter handy. The consulate will only do them if you are in the country pursuant of military orders.

3) b ) Correct, the I-751 NOA1 letter will extend the residency status for 1 year after CR-Green-Card expiration.

4) Working in a foreign country can be considered evidence of giving up US residency.

[YuAndDan 153]

Kathryn,

Thanks for the information, that helps me to ensure I understand the process properly.

Yes, I know about the issues involved if we move to China. I know of a number of other Chinese nationals with U.S. green cards who essentially live and work in China, but maintain their green cards because they own a home in the U.S. (As I and my wife do) and they return to the U.S. every 6 months for about 2 weeks. They've been doing this for at least 8 years and the USCIS has never questioned it.

Anyone else out there heard of this scenario? I'd be curious to hear of others experience.

Also, referring to the extension of one's Green Card. What document does the USCIS provide to show that the Green Card's expiration date has been extended. I thought it was an NOA letter?

Cheers, and thanks for the help.

Dan K.

Green-cards are for residing in the USA, they are NOT "Permanent Visas" Returning to USA every 6 months for a few weeks is NOT residence in the USA.

Maintaining Permanent Residence

Maintaining Permanent Residence You may lose your permanent residence status if you commit an act that makes you removable from the United States under the law in section 237 of the Immigration and Nationality Act. If you commit such an act, you may be brought before the immigration courts to determine your right to remain a Permanent Resident.

You may be found to have abandoned your permanent resident status if you:

• Move to another country intending to live there permanently.

• Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.

• Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.

• Fail to file income tax returns while living outside of the US for any period.

• Declare yourself a “nonimmigrant” on your tax returns.

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

The others are flaunting the residency rules, if caught the green-card can be revoked.

If you intend on doing this, file N-400 within 90 days of third anniversary of LPR status, get Citizenship, and a US passport, then residency will NOT be an issue.

Edited December 7, 2008 by YuAndDan

[DanKearney 0]

YuAnDan,

Thanks for that information. If I read it correctly, I think that what we plan to do is allowable (Although debatable).

You may be found to have abandoned your permanent resident status if you:

[*] Move to another country intending to live there permanently.

We don't "Intend" to move to China permanently, just for a few years. We'll be maintaining our home in the U.S.

[*] Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.

We'll both be returning to the U.S. at least once or twice each year.

[*] Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.

I think returning each year covers this also.

[*] Fail to file income tax returns while living outside of the US for any period.

We will be filing U.S. income tax returns for any income earned in China.

[*] Declare yourself a “nonimmigrant” on your tax returns.

Don't intend to do that.

[*] If you intend on doing this, file N-400 within 90 days of third anniversary of LPR status, get Citizenship, and a US passport, then residency will NOT be an issue.

Can you explain this a little better? I thought one had to have a Green Card for 7 years before being able to apply for citizenship?

Thanks for all the info.

Dan k.

[TayRivers 4]

If you got your Greencard based on marriage to a USC and are still married to them you can file for Citizenship 90 days before the 3rd anniversary of them being approved for the Greencard.

There is a whole thread all about becoming a citizen you can find out all you need to know, here is the link http://www.visajourney.com/forums/index.php?showtopic=311

[DanKearney 0]

Damn, I wasn't planning on learning so much new stuff today. I wonder what important thing got jettisoned from my brain to make room for this new stuff. . .

Thanks for that information. I'm going to check it out.

Dan K.

[Kathryn41 3,205]

However, there is also a residency requirement for actual physical presence within the US during those 3 years with a minimal amount of time - 6 months or less, I believe - outside of the country. Interruption of the physical presence resets the clock so unless you are willing to wait until your wife has been physically present in the US for 3 years after receiving her green card and applying for citizenship, she is going to have to wait until she returns to the US to restart those 3 years.

I think you are interpreting the information a lot more liberally than immigration would. I still say you are taking high risks with your wife's green card status by pursuing your proposed course of action. The decision of whether or not she is living in the US as per her green card status isn't yours to determine - it will be done by Immigration officials who will decide if she does or doesn't meet the physical presence test. Good luck.

You may wish to make an infopass appointment with Immigration and discuss your planned course of action and possible repercussions in person. Don't rely on the Misinformation 1-800 number - they are not immigration people, only call center staff reading off of a script.