A few questions about filing...

[Shub 78]

Hello everybody,

I haven't posted here in a while but my time has come to file for removal of conditions.

My situation is slightly delicate however, as is probably that of a lot of people who post here, so I have a few questions.

I would greatly appreciate it if you could take some time to read this and provide input. I'm a pretty verbose writer but I will try to keep this as short and to the point as possible.

Some background info first. There is important info within but feel free to skim over that for now and go back to it later after reading my immigration-related questions further down.

--Begin background information--

I'm a Swiss citizen and I came to the US in July 07 on a K-1, we got married and applied for my green card that same month, and I got it in January 08, meaning my green card is expiring in January '10. Around the beginning of this year, my wife started suggesting I should look for a new job, in the US or in Europe. I did and found a job in Europe, much faster than we had anticipated. Things went a bit out of control and in retrospect I think I made a brash decision by choosing to take the job and move back to Switzerland. My wife had second thoughts about it but I went ahead and did it. It was probably too unilateral but I thought it would work out in the end.

Before you ask, there hasn't been any problem between my wife and myself in terms of relationship. We love each other very much and want to be together. Right now however, we are separated, not because we want to but because of this job situation. All this time she's been saying she didn't think she really wanted to move but I kind of nodded and smiled thinking everything would be OK once she did move, she'd get used to it, etc.

My main line of reasoning behind all this is that because she has a lot of student loan debt, moving to Switzerland would allow to pay it off faster so we could move on with our lives, since I now get paid more here than the total both of us earned in the US. Add that to her own job here when she got one, and we'd have been golden. Until now we had been living with her relatives because with our jobs we simply could not afford paying for rent and bills and the loan payments and everything else, and I was hoping we could get out of this hell faster and then do whatever we wanted, wherever we wanted. I love my mother-in-law but I'm 28 and I can't stand living with my parents -- or her mother -- much longer.

The thing with her is she has a huge family and a small group of very close friends who all matter a lot to her (I understand and respect that) and she doesn't think she can handle leaving all of them behind. By contrast, the only family I have is my parents, and while I also have a small group of very close friends, we don't see each other that much: once, maybe twice a month at the most. So according to her line of thought, I can cope with it more easily than she can. While that is 100% true, my father is a mildly sick and very lonely man -- by his own doing -- who will have an extremely hard time coping with my leaving a second time. The two years before I came home were not fun in that regard and I don't know how I can tell him I'm leaving again without causing his premature death.

Not to dwell on the above...

I've been working in Switzerland since June 5. In other words I've been out of the US since then.

We've booked a plane ticket for me to go back at the end of this month, help prepare our move, and booked plane tickets for her and myself to come to Switzerland. That is supposed to happen between Oct 28 and Nov 3.

I had taken a leave of absence from my US job just in case things didn't work out in Switzerland, and I gave them my resignation a while back. She also resigned from her job, so as far as America is concerned, we are both jobless at this point.

What she had been telling me all this time is coming to its realization: she really doesn't think she can handle leaving everybody behind. However, it's probably too late to back out of moving now.

I have offered that we don't do the big move that was initially planned with movers and all that junk, instead just pack a minimum of everyday necessities so we can at least be together in Switzerland while we both look for jobs in the US and prepare to go back. My job here can support both of us in the meantime.

I'm feeling upset and miserable about all this even though it is partially my fault. I had most of it planned in my head and everything was looking great -- better pay, better health care, better social benefits, better standard of life, no more stinking car, more travel opportunities (because of better pay), and an occasion to get out on our own... but it looks like that's not happening. I've been accused of always wanting more than what I already have, and it is true that our situation prior to my moving back to Switzerland was not all that bad. Regardless, I was hoping to help provide some improvement.

I cannot hide that I'm bitter about the whole thing if it all collapses, but I had always promised her that I simply just come back to the US and ungrudgingly forget about the whole thing if she didn't want to move, and I will hold true to my word. Like I said I'm not concerned about myself as I am about my father.

--End background information--

So once again, I've been out of the US since June 5. The 90-day period to apply for removal of conditions starts Oct 16 for me.

Firstly, could someone please remind me how long is too long to be out of the US in terms of maintaining permanent resident status without advance parole? I believe it is 1 year but I also have a 6-month / 180-day figure in mind, so what do those 180 days apply to?

If we do what I thought of this morning, which is for my wife to come to Switzerland for a time while we both look for jobs in the US, what are the consequences as far as the removal of conditions process is concerned? I know there is an interview, so I know our physical presence will be required at some point. But outside of that, what else is there to consider?

We may be out of the US for a few more months but can very easily arrange to come specially for the interview if we do not find jobs immediately. My sole concern right now is that the length of time I've been out of country is slowly increasing so once again, how concerned should I be?

Would USCIS be looking at my comings and goings in and out of the country in the context of my application, and is my present situation unpropitious to the I-751 process?

To summarize... what do you think we should do?

Thank you for reading. I'll appreciate any input -- feel free to comment on the situation itself rather than the immigration matters themselves, maybe I could use some outside opinions...

Edited October 4, 2009 by Shub

[milimelo 4,477]

You will need to come and do biometrics around a month after you send in your I-751.

Depending on your service center you can get no-interview approval in 2-6 months (CSC was a lot faster than VSC).

You can be outside the country for up to a year, but expect questioning at POE on your prolonged length of stay (and if more than 6 months absence it could affect your citizenship application).

[payxibka 10,045]

I'm a Swiss citizen and I came to the US in July 07 on a K-1, we got married and applied for my green card that same month, and I got it in January 08, meaning my green card is expiring in January '10. Around the beginning of this year, my wife started suggesting I should look for a new job, in the US or in Europe. I did and found a job in Europe, much faster than we had anticipated. Things went a bit out of control and in retrospect I think I made a brash decision by choosing to take the job and move back to Switzerland. My wife had second thoughts about it but I went ahead and did it. It was probably too unilateral but I thought it would work out in the end.

be careful how you characterize things:

Abandoning Permanent Resident Status

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 United States for more than 1 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 United States may be considered, even if less than 1 year

* Remain outside of the United States for more than 2 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 United States may be considered, even if less than 1 year

• Fail to file income tax returns while living outside of the United States for any period

• Declare yourself a “nonimmigrant” on your tax returns

[DublinD2 0]

Shub,

If there is even the slightest risk of not getting the 10y GC(ie abandoning) by doing the short term move to Switzerland, you risk your happiness by not being able to be with the one your love because she need to live in the US. So re-plan wrt to both your happiness, life long. Being happy and in debt is better than being rich and unhappy.

I have been through the relationship wringer that you are about to go through. It is the start of a slippery slope that you don't want to go down. I posted today about my situation, so I wont go into it here. But our plan was somewhat similar to yours, even down to my wife expressing doubt about the move and concern over her friends and family, and student loans. But I convinced her to move. Our situation differed by the fact that we applied for the CR1 abroad, then returned to the US.

Suffice to say that moving your wife away from family and friends is the worst mistake you could make for your relationship at this time. I hope I am not being to general here and offending any ladies on the forums, but this is speaking from direct experience. Women tend to need social interaction more than men. If you take that social interaction away, and put the person in a new country with no friends/family or support they will get anxious and depressed and unhappy, relating unhappiness to moving to Switzerland and moving to Switzerland on you. Take out the moving and Switzerland words from the last sentence. If you decide for her to move to Switzerland even for afew months, you must make it feel like a vacation.

If the USCIS decide that you shouldnt get the 10y GC because you are working and living abroad you will have to spend atleast 8 months going through the application process again in Switzerland, as both your wife and you have to be resident in the country at the embassy you are filing in for 6 months prior to filing. Or your wife moves back to the US and you re-apply there, while working in Switzerland. Both options are a bad idea.

It is not too late to pull the plug out of moving, thinking like that will only hurt your options.

my thoughts to you would be to work until you have to go back for your interview without "abandoning" your CR1, make as much money as possible, apply like crazy for positions back in the US. Meaning while your wife stays in the US and starts applying for every and any job. Your cost of living will be x2 until she finds work, but when you move back you will get the benefit of your wife being already/still set-up and established. Allowing a quicker settling time and getting life back to the norm.

Hope this helps.

Edited October 4, 2009 by DublinD2

[Brother Hesekiel 2,236]

Shub,

you are dealing with two separate, yet interconnected issues: (1) your marriage and (2) your US residency.

(1) Marriage

The way I understand it, your wife would not be happy moving to Switzerland "permanently" (as in "for many years.") So if you want to make your wife happy and your marriage work, you may have to come to an agreement that ultimately moves both of you back to the US "permanently."

Although the Swiss is arguably one of the most desirable places to live on Earth, if it's not "home" for your wife, there's not much you can do about it. Talking about priorities and sacrifices here. So why not viewing it from its most positive aspect and see it as a wonderful opportunity for your wife to experience life in the most peaceful country in the world which also happens to be one of the cleanest and most beautiful ones? Call me crazy, but I'd think most people would love to have the opportunity to spend 6 to 12 months with their spouse abroad.

(2) Residency

As a legal permanent resident of the US, you'll have to maintain your residence in the US. Yes, you can work abroad for up to a year if you get a reentry permit, but since you are currently living separately from your wife, it becomes a bit more complicated.

That said, if you guys still have your US address and you file the I-751 jointly from that address, and if you are living with your wife in the US when that happens, it becomes a non issue until it becomes time to apply for naturalization, should you desire to do so.

For the aforementioned reasons I would start looking for a job in the US again. Have your wife visit you for a month to see what it's like, but some time this months it's time for you guys to file the I-751 and to be prepared to attend the biometrics appointment beween 2 and 6 weeks later. Most likely there will be no interview, so you are free to travel back to Switzerland afterward, until you found a suitable job in the US.

[Shub 78]

I genuinely appreciate the input so far, thank you.

If we were to apply for the I-751 however, how would I go about maintaining residency? It is my understanding -- do correct me if I'm wrong -- that if I'm out of the country for more than 6 months over the course of a year, they may consider that I have abandoned my status as a permanent resident.

We do still have our address in the US but I can provide no proof whatsoever that I actually live there, indeed because I don't live there.

So if we did apply for the I-751, and then they decide I've abandoned my PR status, the I-751 becomes void anyway, doesn't it?

I don't mean to cheat the system, but how, really, can I maintain any sort of status if I'm not there?

I deeply regret not waiting another year or so to become a citizen and not have to worry about the ins and outs of moving back and forth between both countries if we're so inclined, but what's done is done... I don't really want to become a citizen anyway, mostly because of the whole "pay taxes no matter where you are in the world" thing, but weighing the pros and cons, becoming one would kind of make sense.

Regardless, it would be a lot easier for us if I remained a permanent resident: if I didn't, when/if we wanted to come back, we'd have to start from scratch, she would have to sponsor me all over again, which God knows how she would do without a job in the US, since we would be applying from Switzerland...

Seems like we're in a bit of a pickle and I just don't know what the smartest thing to do may be.

[john_and_marlene 162]

I don't mean to cheat the system, but how, really, can I maintain any sort of status if I'm not there?

You aren't suppose to. The status you want to maintain is permanent resident of the US. Reentry permits to maintain residence are not intended to be used so you can take a job in another country (except pursuant to certain US commerce related or US government jobs). You chose to take a job somewhere else and reside somewhere else. This information alone is enough to revoke your permanent resident status--even for periods of less than 6 months.

Edited October 6, 2009 by john_and_marlene

[Brother Hesekiel 2,236]

Shub,

you are maintaining a permanent residence in the US with your wife. You are still happily married, you have an address where you pay rent (I assume), a (hopefully shared) bank account, shared credit cards, you have a car there (I assume again), auto insurance that covers you both, a telephone, pay income taxes. So if you look at the documents required for filing the I-751, there's presumably nothing in it that would "expose" you to have lived outside the US for the time stated.

File the I-751 jointly with your wife about 80-some days before your conditional GC expires, expect the NOA1 about a week or so later, the biometrics letter another month later, and that's pretty much it, unless they suspect something isn't right or you are one of the few unlucky ones that are randomly picked for an interview.

Once you have your 10-year GC, you still have to keep an eye on your residence requirements, but, assuming you intend to maintain your legal immigrant status, you'll have to take action in that department anyway.

I do not know if the Swiss allows dual citizenship (I believe they do), but if that's the case, being a USC about a 15 months from now would make things much easier for you. Taxes . . . there's always a way to deal with taxes, but dealing with USCIS is an entirely different issue by itself.

[john_and_marlene 162]

Speaking of taxes...are you declaring your Swiss income on your U.S. income tax return?

[Shub 78]

Shub,

you are maintaining a permanent residence in the US with your wife. You are still happily married, you have an address where you pay rent (I assume), a (hopefully shared) bank account, shared credit cards, you have a car there (I assume again), auto insurance that covers you both, a telephone, pay income taxes. So if you look at the documents required for filing the I-751, there's presumably nothing in it that would "expose" you to have lived outside the US for the time stated.

True, legally we have a residence in the US, however I would think that as I come and go, customs and border protection will notice my exits and entries at intervals longer than allowed and at some point will no doubt deny me from entering, and probably confiscate my green card or whatever it is they do... Granted I should be able to file I-751 without too much trouble, but the problems would come after that:

Once I get the 10-year green card, citizenship would be the next logical step but that's where the problems would start, I would think. Most importantly, I would not have current tax returns to attach to the N-400 application, and that would matter only if I can make it through CBP's nets.

Of course I could file tax returns as usual but it would be painfully obvious that my income comes from Switzerland, which probably wouldn't look too good? I couldn't possibly live in Switzerland for 6 months at a time, then go back to the US for another 6 months, and so forth, in order to make it work.

I just don't see how I can salvage this without giving up Switzerland entirely, but maybe I'm assuming too much?

As for taxes, I haven't had to report any income earned in Switzerland since I left the country after tax season this year, so I'll worry about that next year.

[john_and_marlene 162]

Shub,

you are maintaining a permanent residence in the US with your wife. You are still happily married, you have an address where you pay rent (I assume), a (hopefully shared) bank account, shared credit cards, you have a car there (I assume again), auto insurance that covers you both, a telephone, pay income taxes. So if you look at the documents required for filing the I-751, there's presumably nothing in it that would "expose" you to have lived outside the US for the time stated.

True, legally we have a residence in the US, however I would think that as I come and go, customs and border protection will notice my exits and entries at intervals longer than allowed and at some point will no doubt deny me from entering, and probably confiscate my green card or whatever it is they do... Granted I should be able to file I-751 without too much trouble, but the problems would come after that:

Once I get the 10-year green card, citizenship would be the next logical step but that's where the problems would start, I would think. Most importantly, I would not have current tax returns to attach to the N-400 application, and that would matter only if I can make it through CBP's nets.

Of course I could file tax returns as usual but it would be painfully obvious that my income comes from Switzerland, which probably wouldn't look too good? I couldn't possibly live in Switzerland for 6 months at a time, then go back to the US for another 6 months, and so forth, in order to make it work.

I just don't see how I can salvage this without giving up Switzerland entirely, but maybe I'm assuming too much?

As for taxes, I haven't had to report any income earned in Switzerland since I left the country after tax season this year, so I'll worry about that next year.

All your difficulty stems from the fact that it is hard to maintain permanent residence when you are not a permanent resident.

It appears you do not want permanent residence, but rather a come and go as you please visa. Such a visa does not exist.

[Shub 78]

I'm very much aware of that and didn't really have any intention of steering the conversation in that direction.

I'm also aware that a lot of people here do not appreciate people who are cheating or asking about cheating the system, which is why I'm saying I don't want to do that. For that matter I had not planned on leaving the US as early as I did, but life is life and s*** happens, and I'm trying to deal with it as best I can -- which is why I'm asking for advice. What I don't really need is the patronizing...

[john_and_marlene 162]

If you don't want to "cheat the system" the conversation has to go in that direction. You are applying for an immigration benefit that you do not qualify for. You want to remove conditions on a residence that you have abandoned. You have stated here that your intent was to move to Switzerland when you took the job and moved. When you made your domicile in Switzerland and took the job there, you no longer qualified as a permanent resident of the U.S. S*** didn't just happen--you made plans and took actions that have known consequences. I'm not patronizing you. You seem to be avoiding the facts. You cannot avoid "cheating the system" and file for a benefit that you don't qualify for. You may get away with the lifting of conditions, but it won't be without "cheating the system".

[Shub 78]

I think you've thoroughly misunderstood my situation.

Certainly when I left the US it was in the spirit of not coming back before a few years, in which case I would not have sought to file I-751, and we would have dealt with the immigration process all over again if and when we decided to return to the US at some point in the future.

When I left the US however, it was not yet known to me that things would turn out the way they are turning out in my wife's head.

The situation now is that whether we like it or not we are stuck in Switzerland for a time, because we are both jobless in the US, and we have the unfortunate but overall common need for a steady income, which I am providing. My wife is still in the US at this time but we've been separated long enough throughout our relationship that we no longer can bear it. Therefore she's going to join me in Switzerland. Being jobless in the US or in Switzerland she might as well be with me. And so the idea is to consider that this is all a somewhat prolonged stay abroad, during which I happened to have gainful employment, and during which we will devote our time to job searching in the US.

The idea, therefore, is not to get a "come and go visa", as you put it, but rather to salvage the present situation, apply for the I-751, continue/resume living in the US as if nothing had ever happened and forget about Switzerland for now. I don't believe it is too late after all.

Once again I had no desire of steering the conversation into the direction of keeping PR status and attempting to naturalize while not actually living in the US.

Edited October 7, 2009 by Shub

[john_and_marlene 162]

Establishing the Right to Reenter the United States

In order to be readmitted to the United States, an LPR is required to show that he or she acquired LPR status in accordance with the immigration law, that he or she has retained that status from the time that it was acquired and that he or she is “returning to an unrelinquished lawful permanent residence after a temporary visit abroad.”

Any LPR who returns to the United States after an absence may be questioned regarding whether he or she has abandoned or relinquished his or her LPR status even though he or she presents a specified valid entry document. Presenting a “green card” to the Customs and Border Protection (“CBP”) Inspector at the port of entry after an absence of less than a year provides no assurance that the LPR will be readmitted to the United States, for while the green card satisfies the requirement of presenting a valid entry document, its presentation is not evidence that the LPR is “returning from a temporary visit abroad.” Thus, the burden is on the returning LPR to establish that his or her visit abroad was intended to be “temporary” and that his or her actions have been consistent with that intention. The types of questions that are relevant in determining an LPR’s intent to retain LPR status include:

Are the location of the immigrant’s family ties, property holdings and job primarily in the United States, rather than abroad?

Is the LPR returning to the United States as a place of employment or business or as an actual home, rather than for a brief visit?

Did the immigrant depart from the United States for a specific, short-term activity, rather than for employment or residence outside the United States of indefinite duration?

Can the LPR be expected to return to the United States from abroad within a relatively short period of time?

Can the date of the immigrant’s return to the United States be fixed by some early event, such as the termination of an overseas assignment, the immigration of a relative or the disposition of assets outside the United States?

Did the immigrant file United States income tax returns as a “resident” taxpayer, regardless of whether any tax was owed, assuming the immigrant earned money (either inside or outside the United States) while absent? (Filing an income tax return as a nonresident taxpayer, claiming nonresident tax treaty benefits or failing to file a U.S. tax return are inconsistent with an intention to maintain lawful permanent resident status).

The more of these questions that can be answered affirmatively by the returning LPR, the more likely it is that CBP will consider that he or she maintained LPR status. In assessing the likelihood that CBP will readmit an LPR in that status, it is also important to consider his or her pattern of travel over the years since obtaining LPR status. If an LPR spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round-trip tickets both originating and terminating in a foreign country, CBP is likely to challenge that immigrant’s entitlement to LPR status at the time he or she seeks to enter the United States, particularly if those trips are to vacation or resort destinations.

http://www.klaskolaw.com/articles.php?action=view&id=51

I do understand your intentions are now to reside in the U.S. The problem is that your intentions at the time you departed and your actions while away are used for the abandonment determination, not what your intentions are for the future.

That being said, I wish you luck.