Left for study abtroad

[rika60607 215]

Quote from visajourney:

http://www.visajourney.com/content/compare

After the K-3 Visa is approved by the US Consulate, the Non-US Citizen Spouse can enter the US with their status as a "K-3 Visa Holder" valid for two years. They may freely travel in and out of the US as the K-3 Visa is a multiple entry visa.

Quote from USCIS:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=254a3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=254a3e4d77d73210VgnVCM100000082ca60aRCRD

Expiration of K-3 Status While Applying for Adjustment of Status

The K-3 nonimmigrant visa holder can apply for an extension of status by filing Form I-539, Application for Extension of Stay, with USCIS no more than 120 days prior to the expiration of the K-3 nonimmigrant visa. By obtaining an extension of K-3 nonimmigrant status, your spouse will be able to leave the United States and return without advance parole. Your spouse may also choose to apply for advance parole based on the pending application for adjustment of status. If your spouse wants to apply for advance parole, he or she will need to file Form I-131, Application for Travel Document.

Edited April 1, 2010 by rika60607

[Marina-Del 10]

And how long does your son plan on staying outside of the US? Ignoring the fact that he might have trouble getting back in again, (imagine he gets in fine) what then? He plans on going back to school for how long? Considering he's already been out of the country for almost a year and plans on leaving again a month later for who knows how long, it might be difficult to get a re-entry visa.

[rika60607 215]

There is no re-entry visa, only returning resident visa and re-entry permit.

Looking at I131 (re-entry permit), they do ask for how long you have been outside of the US already... there are options such as 1. less than 6 mo, 2. less than a year etc. (6 tiers, last one = more than 4 years).

So he's in tier 2. It doesn't look so bad now, does it?

And how long does your son plan on staying outside of the US? Ignoring the fact that he might have trouble getting back in again, (imagine he gets in fine) what then? He plans on going back to school for how long? Considering he's already been out of the country for almost a year and plans on leaving again a month later for who knows how long, it might be difficult to get a re-entry visa.

[ninalika 0]

There is no re-entry visa, only returning resident visa and re-entry permit.

Looking at I131 (re-entry permit), they do ask for how long you have been outside of the US already... there are options such as 1. less than 6 mo, 2. less than a year etc. (6 tiers, last one = more than 4 years).

So he's in tier 2. It doesn't look so bad now, does it?

Hi, again,

thank you everybody for your interest in my problem!

My son and I actually already permanent residents since 2006, but we had a conditional status. After it expired 2 years ago we received 1 year exceeding papers ( actually I got such 1 year exceeding document in 2008, but my son didn't get such paper. At INFO-pass I was told that he is ok, since we are together, and we both can travel. But on the way back from my home country he wasn't allowed to the plane, because he didn't have any documents to US(for local officers it was serious). I came back on my own, leaving him with my older son. He studied all that time at a good school back home.

Finally, they fixed the mess, after my attorney reapplied for the removal of conditions for him, ( during this time he got another one year extention and came in US in August 2009) But since he was already for a year at his home school, he wanted to graduate from this school, instead of coming back in nowhere school in US, (losing another year?) He left for his school after his finger prints were taken ( I received his new GC in about 10 days after he left) I do not know when was the date of the removal of condition approval.

Does it sound like a very complex issue?

Yes, he is going to study in the one of the best Universities in Russia ( his school was very good preparing him for that University, with high level of physics and mathematics)

So, when he comes back this summer ( I hope the officer will allow him in, he won't send a 18 y.o. child whose mom is in US, back nowhere, I do hope so)

What shall we do after that, in order for him to go study at University in Russia, to apply immediately for re-entry permit? How much time will it take? Will he have to show any documents proving that he will study at this University?

Thanks a lot to everyone, again!

rika60607, thank you very much! Your answers are always so proficient!!

ninalika

[rika60607 215]

Is he going to Moscow State?

OK, let me see if I understand it correctly:

he had a problem because his ROC was lost or whatever.

Problem got fixed, and he came back to US, with what document - expired 2 year GC + extension letter?

Then he did biometrics, so that his 10 year GC could be issued and left. At this point, assuming that he had an expired GC + extension letter, he was OK, regardless of when exactly his 10 year GC was approved.

Now, to maintaining his residence: normal course of study is 5 years, that may be too long for being gone, even with re-entry permits. But, he should get one anyway. I assume that he is not a Russian citizen? That would help him with proving that he has no intent to stay in Russia permanently, if that issue was ever raised.

[milimelo 4,541]

ninalika,

don't forget to register your son for selective service if he wants to get a US citizenship in the future. It's a requirement.

[ninalika 0]

Is he going to Moscow State?

OK, let me see if I understand it correctly:

he had a problem because his ROC was lost or whatever.

Problem got fixed, and he came back to US, with what document - expired 2 year GC + extension letter?

Then he did biometrics, so that his 10 year GC could be issued and left. At this point, assuming that he had an expired GC + extension letter, he was OK, regardless of when exactly his 10 year GC was approved.

Now, to maintaining his residence: normal course of study is 5 years, that may be too long for being gone, even with re-entry permits. But, he should get one anyway. I assume that he is not a Russian citizen? That would help him with proving that he has no intent to stay in Russia permanently, if that issue was ever raised.

Oh, thank you, what you said is balzam on my heart!

No, he is going to Sankt Peterburg State

We will try to get him a re-entry permit as soon as he gets here again.

Now, whaT is it about to register for the service? Does he have to do that immediately when he turns 18? (This is in April), or within a year or so...How urgent/ important is it to do?

Thanks to everyone,

Ninalika

[milimelo 4,541]

Oh, thank you, what you said is balzam on my heart!

No, he is going to Sankt Peterburg State

We will try to get him a re-entry permit as soon as he gets here again.

Now, whaT is it about to register for the service? Does he have to do that immediately when he turns 18? (This is in April), or within a year or so...How urgent/ important is it to do?

Thanks to everyone,

Ninalika

Here's the link to SSS http://www.sss.gov/ - there's more information in there. It's important to be done if he wants to become a USC someday. Age range is 18-26.

[HeatDeath 430]

PS. I worked for 7 months in Europe just weeks after becoming a LPR. I was let back into US, no problem.

I had a new US job waiting for me and I had no status to go back to Europe. That, however, was not discussed at POE.

So either POE officers do not do their job, or some opinionated people think that they understand the law better than POE officers.

Hmmm

I don't think you have to read too many PoE reviews here for it to become obvious that the more experienced posters here understand the law a LOT better than many PoE officers, AND that many PoE officers do not do their jobs.

And lets not even start talking about SSA clerks.

I'm just sayin'...

Legally, this guy may be in a heap of trouble. By the strict wording of the law, he has almost certainly abandoned his residency. The only thing working in his favor is the enormous latitude for interpretation the law grants to PoE officers. It's a total roll of the dice for him at the PoE. If luck holds, he'll just be one more face in a huge lineup of faces coming off the airplane, the officer will be about to go on break, and he'll get through without a second thought. Or he could get a cranky disgruntled veteran who is behind on his rejection quota (note: CBP officially denies that rejection quotas exist ) and who decides to assume abandonment and throw the book at him. There's simply no way to know in advance which he'll get.

For us computer geeks and wannabe lawyers, this is the most frustrating part of anything immigration-law related: that there is almost no such thing as a cut-and-dried application of the law to a particular circumstance. All US immigration law is structured to funnel enormous discretionary power through the persons of a very small number of USCIS, DoS, and BP front-line officers, all of whom are perfectly capable of either ignoring (or at least strongly bending) the law (if they're having a good day) or dropping it on us like a thousand tons of mountain avalanche (if they're having a bad day). Once they make a decision, appeals, where they are possible, are long, drawn out, and ridiculously expensive.

That's really the best reason to study these things carefully and to do things right: doing so insulates you from the vast amounts of potential capriciousness embedded in the system. Playing fast and loose with the rules is very possible, and people do get away with it all the time, but by doing so, they render themselves extremely vulnerable to the arbitrary, and basically unpredictable individual discretion of the individual officers they will deal with.

[HeatDeath 430]

On further reflection:

Being gone for 11 months to study, starting from just before RoC approval, would probably not, by itself, be taken by a CBP officer as abandonment of residence. [Over 12 months would be another matter entirely]. Provided he states clearly, and, if necessary, repeatedly, that he NEVER had any intention of abandoning his US permanent residence, he will very likely be let back in (though he can expect a stern talking to about abandonment of residence). "Intention" is the key word here. This entire area of law is defined around the applicant's stated intention and the CBP officer's interpretation of the sincerity of that stated intention. A clearly and unambiguously stated intention to preserve residence carries a certain amount of weight, and requires the CBP officer to document clearly the proof and reasons he is using to disregard that statement.

Now if he leaves for another 11 months, without a reentry permit, that will virtually certainly be seen as abandonment. Frankly, even with an approved reentry permit, it's dicey. I don't know precisely how much a reentry permit insulates you from the presumption of abandonment if you had also been away for an extended period before the reentry permit was issued. The problem is that there is no clear minimum legal threshold beyond which abandonment is deemed to have occurred. As I wrote above, it's all up to the individual discretion of the particular CBP officer. As was posted above by someone else, they can deem abandonment to have occurred even for shorter periods of absence than 1 year, particularly if that absence is part of an ongoing larger pattern of absences. It's all very fuzzy, and that's not good.

[canboat 0]

DISCLAIMER: I am not a lawyer. The contents of this post are NOT represented as valid, correct or suitable for any purpose and do NOT constitute legal advice or guidance. Any hyperlinks within the post are purely to denote sources of information and do not represent any endorsement of the source(s).

Generally speaking a Lawful Permanent Resident (LPR) must maintain permanent residence in the US, which is not abandoned. It is up to the LPR (green card holder) to prove that she/he has not abandoned his permanent residence in the US.

There is no single factor that determines abandonment of permanent residence but rather a totality of numerous factors (largely up to the discretion of immigration officials):

1) Duration of absence. Note: Green Card holder may NOT re-enter the US after absence of 1 year or more using the green card. Generally speaking, the person would most likely loose the Green Card if he was outside the US for 1 year or more and is not in possession of a valid Re-entry Permit.

NOTE: The re-entry permit can be applied for only while INSIDE the US. The biometrics appointment (which is a part of the application) must also take place inside the US. There is no requirement for the applicant to remain in the US past the biometric appointment. For more details see: http://www.uscis.gov/files/form/i-131instr.pdf

2) You son must also meet other conditions such as:

a. Register for selective service, see http://www.sss.gov (required for all males 18-26).

b. File taxes as US resident

c. Meet other conditions, for examples see:

i. http://www.***removed***/greencard/retain-greencard.html

ii. http://www.fosterquan.com/Services/US_Immigration/US_Permanent_Residency/

iii. http://www.americanlaw.com/maintlpr.html

In my personal opinion, the route your son is choosing is not an optimal one if he intends to reside permanently in the US. First of all, staying out of the US for a period of 4 to 5 years is very likely to result in the loss of the Green Card status as it would be very difficult for him to prove his intention to reside in the US permanently. Secondly if he intends to live permanently in the US, graduating from top Russian university would be worse for him than graduating from a low ranked US school. I am not making a judgment as to the value of actual education received – just how employers perceive it.

Again, in my personal limited opinion, you son would be much better off coming back to the US immediately, studying for ACT/SAT and applying for US universities. In regards to finishing his high school education – there are numerous options that will not cause him to loose a year, including homeschooling (for more information see http://www.hslda.org OR http://en.wikipedia.org/wiki/Homeschooling_in_the_United_States).

In regards as to what is likely to happen if your son chooses to attend the university in Russia – most likely at some point in the future immigration officials will question his intention to reside permanently in the US – they will probably warn him at first with the “I-407 advised” stamp, though this is not a guarantee. You probably want to do an internet search on the “I-407 advised” phrase. If he does not stay permanently in the US at that point, he will probably loose his GC. Please note that staying out of the US without a valid re-entry permit for more than 1 year will lead to virtually AUTOMATIC loss of Green Card status.

You son, may be able to maintain his Green Card by applying for consecutive re-entry permits – however there is no guarantee that they would be granted (he would need 3 to complete his education) or that even if granted, they would protect him against allegations of abandonment of the permanent residence in the US.

At the end it all boils down as to what your son wants to do in the long run – if he intends to live permanently in the US then getting US education would make more sense, not to mention the potential immigration complications.

In short, what I am saying is that Green Card holders can (and do) loose their status on the basis of study abroad. Hence, it is essential that your son understands the risk and governs himself accordingly.

DISCLAIMER (again): I am NOT a lawyer. Preceding contents of this post do not constitute legal advice and are not represented as such. I also do not represent the information contained in this post as valid or suitable for any particular purpose.

[rika60607 215]

If he is not a citizen of Russia, then he has no means of staying there as a permanent resident, once he finished his study, yes? If he did not take permanent residency in Russia, then he did not abandon US residency.

As long as (1) he is not a citizen of Russia and is not married to a citizen of Russia and (2) has no real estate property in Russia, he can reasonably prove that he did not take up Russian residency.

Of course, re-entry permit is essential

In my personal opinion, the route your son is choosing is not an optimal one if he intends to reside permanently in the US. First of all, staying out of the US for a period of 4 to 5 years is very likely to result in the loss of the Green Card status as it would be very difficult for him to prove his intention to reside in the US permanently.

You are making a judgment on employer perception. Having degrees from both Russian and US universities, I can tell you that your statement is not correct in all cases. My top rated Russian University degree has gained me jobs and my mid-level US university degree was frowned upon, all here, in the US of A.

Secondly if he intends to live permanently in the US, graduating from top Russian university would be worse for him than graduating from a low ranked US school. I am not making a judgment as to the value of actual education received – just how employers perceive it.

Edited April 5, 2010 by rika60607

[rika60607 215]

From a link you provided!

...Finally, permanent resident status can be lost through abandonment. Abandonment can occur due to extended periods of travel abroad, such as an overseas work assignment. The test used to determine whether permanent resident status has been abandoned is : 'Whether the alien is returning to an unrelinquished lawful permanent residence in the U.S. after a temporary absence abroad'. This requires less than a permanent dwelling place in the U.S. , but more than mere desire to retain permanent resident status. The permanent resident's intention must be for the absence from the U.S. to be only temporary, there must be evidence documenting this intent. A 'totality of the circumstances' analysis is used by Immigration to determine whether a permanent resident has 'abandoned' permanent resident status and no longer has an intent to be only 'temporarily absent'. Factors that are considered include: close family ties in the U.S. ; property holdings in the U.S. ; whether the employer is a U.S. company; the reason for the absence; duration of the absence; business affiliations in the U.S. and abroad. The 'burden of proof' is on the government to prove abandonment of lawful permanent resident status by clear, unequivocal and convincing evidence.

It is up to the LPR (green card holder) to prove that she/he has not abandoned his permanent residence in the US.

[ninalika 0]

Rika, thanks again!

Yes, my son has a family (his mom) in the US, has always filed taxes. Now, shall I/ can I register him for the seective service on his behalf, or he has to be present?

And one more important for me question: how long it takes from applying for re-entry permit till fingerprints?

Last summer we didn't apply for such because I was affraid that he would have to go before he is called for fingerprints.

Thank you, everybody, for your sincere interest and concerns about my situation!

P.S. He is too young to know yet where he is gonna reside finally, which country, what girl to marry, etc. So, to get a good education is the priority for him at this point, and I agree with him completly. But I, as his mom, of course, want my son to be with me, and I am trying to do anything possible, that he didn't lose such a chance!

Sincerely,

Ninalika

[rika60607 215]

You are very welcome!

please understand that I am saying that what your son intends to do is reasonable and possible, but he has to be careful and follow the rules religiously, or else at some point he will get into debate with POE and end up in Immigration court to determine whether he gets to keep his GC or not.

Rika, thanks again!