abandonment of conditional visa

[deejay29 0]

my husband and i had a baby before he came here as a k1 visa and after 6 months of receiving his visa he decided to fly back to his country because we had marital issues.after almost 11 months of being away from each other.we realized that we can still fix our marriage because we still love each other and he missed his baby's growing up period.i have several questions that i am concerned about:

1.since he's out of the country for 11 months, can he still go back to the u.s without any problem?

2.if he decided to stay in his country and abandoned his conditional visa,can i still petition him? not K1 because we got married here in u.s.How long will it take?

3.is it true that he cannot go back to the u.s for 10 yrs if he abandoned his conditional visa.

i would greatly appreciate your comments.

[moroccogirlny 100]

I'm not too sure of the laws on this but I found this on the USCIS website:

Maintaining Permanent Residence

You may lose your permanent resident status (green card) if you commit an act that makes you removable from the United States under the law, as described in Section 237 or 212 of the Immigration and Nationality Act (INA) (see the “INA” link to the right). If you commit such an act, you may be brought before an immigration court to determine your right to remain a permanent resident.

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

You might want to consult with a Immigration Lawyer

[HeatDeath 430]

1) If it's been less than a year he should be able to come back. Since he'll be living with you he has arguably maintained a US residence and should not be deemed to have abandoned his permanent residence. He'll have to hurry though because that changes once he hits the one year mark.

2) If his permanent residence status is deemed to have been abandoned you can petition him for a spousal visa, but you two can expect an interview where he will have to explain, in detail, the circumstances of why he abandoned his PR status the first time.

3) This is not true. As far as I know, abandoning PR status does not create any kind of bar. The only thing that creates a 10 year bar, that I am aware of, is being in the US, out of status, for over a year. Moreover, any previous overstay he may have had would have been wiped out when he became a PR, because he became a PR by being married to a USC. I don't know if overstay time "erased" by AOS approval due to marriage to a USC reappears if the PR status is subsequently abandoned, but I don't think it does. That would seem weird to me.

[Scott and Mhay 57]

I know it is highly recommended that if he was 2 stay outside the US for longer than 6 months he should have had a re-entry permit. Technically yes he could come back and shouldn't have any issues but that all depends on the POE and the entry officer that interviews them. They have the final say when he tries 2 go through immigration. They would make the determination if he "abandoned" his PR status.

[deejay29 0]

1) If it's been less than a year he should be able to come back. Since he'll be living with you he has arguably maintained a US residence and should not be deemed to have abandoned his permanent residence. He'll have to hurry though because that changes once he hits the one year mark.

2) If his permanent residence status is deemed to have been abandoned you can petition him for a spousal visa, but you two can expect an interview where he will have to explain, in detail, the circumstances of why he abandoned his PR status the first time.

3) This is not true. As far as I know, abandoning PR status does not create any kind of bar. The only thing that creates a 10 year bar, that I am aware of, is being in the US, out of status, for over a year. Moreover, any previous overstay he may have had would have been wiped out when he became a PR, because he became a PR by being married to a USC. I don't know if overstay time "erased" by AOS approval due to marriage to a USC reappears if the PR status is subsequently abandoned, but I don't think it does. That would seem weird to me.

thanks for this great reply.

1) If it's been less than a year he should be able to come back. Since he'll be living with you he has arguably maintained a US residence and should not be deemed to have abandoned his permanent residence. He'll have to hurry though because that changes once he hits the one year mark.

2) If his permanent residence status is deemed to have been abandoned you can petition him for a spousal visa, but you two can expect an interview where he will have to explain, in detail, the circumstances of why he abandoned his PR status the first time.

3) This is not true. As far as I know, abandoning PR status does not create any kind of bar. The only thing that creates a 10 year bar, that I am aware of, is being in the US, out of status, for over a year. Moreover, any previous overstay he may have had would have been wiped out when he became a PR, because he became a PR by being married to a USC. I don't know if overstay time "erased" by AOS approval due to marriage to a USC reappears if the PR status is subsequently abandoned, but I don't think it does. That would seem weird to me.

i do appreciate your reply..

[VanessaTony 3,567]

Agree with Heat on this one.

[Brad and Vika 129]

Moving to appropriate forum.

[Brother Hesekiel 2,236]

The K-1 visa expired the moment he was admitted to the United States.

I assume you got married within 90 days of his arrival. You then filed for AOS and he got a 2-year Green Card.

If he's out of the US for 11 months now, he might be questioned by CBP, but if he has "his story" right, he will be admitted again.

Contrary to what has been stated above, a Reentry Permit is needed once he's absent for a year, not earlier. He needs to come back as soon as possible and show that he did not abandon his residency. With his wife waiting for his return, this should be possible.

[JeroenAndMichelle 28]

Since there is some confusion about reentry and such, here's some stuff regarding residence in the US: http://www.uscis.gov...-0-0-30706.html and I think the following are especially interesting regarding this topic:

© Disruption of continuity of residence

(1) Absence from the United States .

(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not dis rupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

© The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 316.5(d) , absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under § 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)

(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident . An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. (Revised 2/3/95; 60 FR 6647)

(3) <a name="0-0-0-19535" id="0-0-0-19535" title="8cfrsec3165c3"> Removal and return . Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part. (Revised effective 4/1/97; 62 FR 10312 )

(4) Readmission after a deferred inspection or exclusion proceeding . An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under Sec. 316.2(a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.

Edited January 18, 2011 by JeroenAndMichelle