Worth it to seek permanent resident status?

[reyz 0]

My fiance is currently here in the US studying (we got engaged over christmas) on a regular student visa. We're planning to get married regardless of visa considerations although we haven't set a date yet (we've known each other for 6 years). She graduates in December, and after that she wants to work here for a year in order to get some experience. After that, we don't know what we're doing, but it seems pretty likely that we'll live outside the country for some amount of time, perhaps a couple of years and it's not certain that we'll return to the US to live and work at all. We will however want to visit my family and our friends.

When she graduates, she can get her OPT visa and work for a year with that, so permanent residency is not absolutely required for her to get her experience.

My question is, is it worth it for us to go through the process of getting permanent residency for her? We may return at some point and live/work, so it would be nice to have in the future as well (and also the OPT process isn't super easy either, although not as complex as the green card process). On the plus side, it would be nice to be able to come and go (and work) as we want without problems. However, it's a more complicated and expensive process to get the green card and she can work without it.

Specific questions that I can't find answers to are:

1) if we get her permanent residency and stay here until she has conditions removed (and with an ap for travel before) and then leave the country after she has permanent residency for a couple of years, will she lose her green card and/or will this cause other problems for us? I've read that if you're out of the country for more than 1 year you can be considered to have abandoned your residency, but is that actually applied ever? What's the situation if you have a green card but live outside the country for awhile?

2) If he OPT ends and we leave the country, to come back in we would need to do a CR-1, is that correct? Is that difficult to do? Is it more difficult to get her permanent residency starting now, or go the easy OPT route and maybe in 5 years get her permanent residency then if we decide to return to the US to live?

3) If we're married and she doesn't have a green card, what visa options are there for her to come into the country to visit? Is it only a tourist visa? If so, will she be denied a tourist visa because we're already married?

Thanks for the help, these boards are a great resource.

[Kathryn41 3,205]

My fiance is currently here in the US studying (we got engaged over christmas) on a regular student visa. We're planning to get married regardless of visa considerations although we haven't set a date yet (we've known each other for 6 years). She graduates in December, and after that she wants to work here for a year in order to get some experience. After that, we don't know what we're doing, but it seems pretty likely that we'll live outside the country for some amount of time, perhaps a couple of years and it's not certain that we'll return to the US to live and work at all. We will however want to visit my family and our friends.

When she graduates, she can get her OPT visa and work for a year with that, so permanent residency is not absolutely required for her to get her experience.

My question is, is it worth it for us to go through the process of getting permanent residency for her? We may return at some point and live/work, so it would be nice to have in the future as well (and also the OPT process isn't super easy either, although not as complex as the green card process). On the plus side, it would be nice to be able to come and go (and work) as we want without problems. However, it's a more complicated and expensive process to get the green card and she can work without it.

Under your circumstances she will have legal status while she is in the US and you intend to leave the US before her legal status expires and not live here, there isn't a good reason for you to file for AOS at this time. One of the criteria for receiving a green card is that you are supposed to be living in the US. If you stop living in the US you forfeit the green card, so it seems a waste of money to obtain something that you won't be using. If the green card remained valid while you live outside of the country, it would be one thing - but it doesn't so you would be wasting your money. The down side is that when you return to the US for temporary visits she will not be allowed to work. The only way she can come and go and work and live in the US and in other countries is if she is a US citizen. For all other circumstances she would need the appropriate visa or green card. She is not allowed to work without the green card once her current status expires. She would require either the green card or an employment type of visa.

Specific questions that I can't find answers to are:

1) if we get her permanent residency and stay here until she has conditions removed (and with an ap for travel before) and then leave the country after she has permanent residency for a couple of years, will she lose her green card and/or will this cause other problems for us? I've read that if you're out of the country for more than 1 year you can be considered to have abandoned your residency, but is that actually applied ever? What's the situation if you have a green card but live outside the country for awhile?

The purpose of the green card is to allow residency in the US. Residency means living in the US. If you take up residence outside of the US then you are deemed to have abandoned the green card. And yes, people do have their green cards confiscated at the border regularly when they try to use them to re-enter after a period of absence. If you plan to be outside of the US temporarily for one to two years you can apply for special travel documents that will indicate your intentions to US immigration. You may still be deemed to have abandoned residency, though, as it is the border authority who will decide when you present yourself at the border for re-entry. Basically, you cannot 'live' outside of the US either for a short while or a long while and maintain a green card. You can temporarily 'reside' outside of the US for certain employment or educational situations but you need permission.

2) If he OPT ends and we leave the country, to come back in we would need to do a CR-1, is that correct? Is that difficult to do? Is it more difficult to get her permanent residency starting now, or go the easy OPT route and maybe in 5 years get her permanent residency then if we decide to return to the US to live?

If you are not intending to live in the US now take the easy OPT route and when you are ready to return to the US pursue the appropriate visa at that time. The CR-1 visa will provide her with a green card upon re-entry. You may be able to do this through a Direct Consular Filing (DCF) process but that will depend on the country in which you are living and your own status in the country at the time. There is no point in filing for permanent residency until you are ready to live in the US.

3) If we're married and she doesn't have a green card, what visa options are there for her to come into the country to visit? Is it only a tourist visa? If so, will she be denied a tourist visa because we're already married?

If you wish to visit, yes, she will need a visa or if she is from a Visa Waiver country and has not negated the VW qualifications, then she can use that to enter the US. They will not deny a tourist visa solely because she is married to a US citizen. They will deny her a tourist visa if they believe she is intending on using it to enter the US and remain in the US. So, she needs to provide proof of her ties overseas when she wishes to visit the US - employment proof, residential ties (ie. mortgage, rent, etc.), return ticket, in other words evidence that shows she really needs to return 'home' and is therefore not a risk of remaining in the US. You will also need to provide supporting evidence to show that you too are not intending to return at this time, reinforcing her position as being a visitor only.

Thanks for the help, these boards are a great resource.

Hope this helps.

Edited January 23, 2010 by Kathryn41

[reyz 0]

Wow, thanks Kathryn41, that's good info. I think you're right, if she's going to lose the green card anyway, then it doesn't make sense to go through the hassle and spend the money.

Do you know offhand any links to info at USCIS or anywhere else that has the rules regarding abandonment of a green card or anything? I spent a bunch of time looking for it, but of course all info on government websites is incredibly difficult to find. I'm trying to keep a folder with all the relevant statutes so if I need them later, I have it all organized.

Thanks again for the lengthy and thoughtful reply.

[Kathryn41 3,205]

You're welcome .

Here's links to the relevant information at the USCIS website:

http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

and "Welcome to the United States: A Guide to New Immigrants" http://www.uscis.gov/files/nativedocuments/M-618.pdf see page 10 for specific information about maintaining residency status.

Edited January 24, 2010 by Kathryn41