What exactly happens when a customs agent decides you're misusing a green card?

[danielm 1]

Hello,

I am a U.S. citizen who resides outside of the U.S with my wife. She currently has a green card that we have been using to enter the U.S. every 11 months for visits. We are aware that this is not the way you're supposed to use a green card, but my wife is not eligible for a tourist visa until 2015 due to a prior overstay, so this is currently our only option. She received her green card in 2009; our pattern since then has been: 1 month visit in late 2009... 11 months outside US... another 1 month visit in late 2010... another 11 months outside U.S. From what I read, this is not going to work forever— sooner or later, a custom agent will look at the pattern of entries and decide that we are abusing the green card, since we are not maintaining residence.

My question is: what exactly happens at this moment, when the customs agent decides the green card is being abused? My understanding is that my wife cannot be deported on the spot; there must first be a removal process. More to the point: will we be basically able to leave the airport, go to my parents house, get some sleep, stay in the U.S. for a few days and then leave? Or will she be detained at the airport for hours, held in some sort of custody, etc?

The point is that we can live with losing the green card. But, since we are traveling with our 2.5 year old son, we cannot live with taking a 12 hour flight only to find ourselves trapped in the airport, detained, possibly turned away. I've read accounts that suggest that in these situations, it's basically like your green card is taken away but you're essentially free to leave at that point (sounds convenient, unlikely). And I've read other accounts that make it sound like you're barred from entering, etc.

Can anybody please advise?

Many thanks!

Edited November 14, 2011 by danmayer

[Operator 1,927]

From what I've read the green card holder is entitled to a hearing before the green card is actually rescinded which is not the case for a visa holder. If your wife hasn't misrepresented her time outside the US it seems to me that it would be unlikely that they incarcerate her prior to any hearing. Probably a good question for an immigration attorney prior to POE.

[danielm 1]

From what I've read the green card holder is entitled to a hearing before the green card is actually rescinded which is not the case for a visa holder. If your wife hasn't misrepresented her time outside the US it seems to me that it would be unlikely that they incarcerate her prior to any hearing. Probably a good question for an immigration attorney prior to POE.

Yes, this seems to jibe with my impressions, and yes, consulting with an attorney would be a good idea.

I just wonder if the you're basically allowed to leave and go home pretty quickly, or whether you're subject to being stuck at the airport for, say, 12 hours while all this is going down. If you've ever travelled with a two year-old, you can imagine that this prospect is a real nightmare.

Edited November 14, 2011 by danmayer

[Operator 1,927]

Yes, this seems to jibe with my impressions, and yes, consulting with an attorney would be a good idea.

I just wonder if the you're basically allowed to leave and go home pretty quickly, or whether you're subject to being stuck at the airport for, say, 12 hours while all this is going down. If you've ever travelled with a two year-old, you can imagine that this prospect is a real nightmare.

If your son is a USC then both of you would be allowed to leave the airport. Maybe not happily but...

[immigrationhelp 0]

From what I understand and have heard from other Green card holders is that you can file an application stating that you will be staying outside the country for the most part of the year and not returning frequently. Once this is approved, your wife should not have any issues traveling as she pleases during this period (I believe its more like a 2-3 year approval). This should protect your wife from losing her GC!

[danielm 1]

From what I understand and have heard from other Green card holders is that you can file an application stating that you will be staying outside the country for the most part of the year and not returning frequently. Once this is approved, your wife should not have any issues traveling as she pleases during this period (I believe its more like a 2-3 year approval). This should protect your wife from losing her GC!

You're referring to I-131. The problem is that this document can only be applied for while in the United States, and then one must wait and do a biometrics capture and so forth.. so, it's really only obtainable if you're going to spend a long time (potentially many months) in the U.S., which we can't do for work reasons and so forth.

(This is somewhat off the topic of my original question, but I mention this in case anybody else reading this thread is in a similar trap as we are).

Edited November 14, 2011 by danmayer

[Darnell 8,478]

apply for an SB-1 (SB-11?) at a US Consulate IV office near you. Soonish. Today-ish, even.

[danielm 1]

apply for an SB-1 (SB-11?) at a US Consulate IV office near you. Soonish. Today-ish, even.

I don't think the SB-1 applies to us. We haven't been outside the U.S. for more than a year at any point— this is what SB-1 is for. Also, the time that we have spent outside of the U.S, has not been 'for reasons beyond our control'.

[VanessaTony 3,567]

I don't think the SB-1 applies to us. We haven't been outside the U.S. for more than a year at any point— this is what SB-1 is for. Also, the time that we have spent outside of the U.S, has not been 'for reasons beyond our control'.

From all the reading I've done they WILL take her greencard but parole her entry. She will be required to go before an immigration judge to plead her case.

You should also know she won't be eligible for USC any time soon. She's spent far too much time outside the US.

Have you maintained a residence in the US? Has you (and her) been filing taxes?

[danielm 1]

Thanks for your reply.

Can you explain this a bit more?:

From all the reading I've done they WILL take her greencard but parole her entry. She will be required to go before an immigration judge to plead her case.

What does it mean to have paroled entry?

We have not maintained a residence in the US. I have been filing taxes, but my wife has not been working since our son was born (same year as green card was granted), so has not had any tax liability and therefore no reason to file a tax return.

Edited November 14, 2011 by danmayer

[CC90 90]

What does it mean to have paroled entry?

It basically means you'll be allowed to leave the airport, etc. pending a hearing. You'll likely be given a Notice to Appear if, in fact, CBP decides to take this route. The unfortunate part is that you'll never know when they'll do this, but it generally has to be pretty clear abuse before they do. From what you said, it would appear to any sensible person that she's abusing it.

Rentry permits are generally approved for work reasons, even multiple times, assuming you plan to relocate to the US at the end of some determined period--or at the very least show an interest to that effect. Why can't your wife stay 2-3 months behind to wait for the permit? I understand she might be the primary caregiver for your son, but if maintaining the green card is what you want to do, this may be your only option.

But what is wrong with giving up the status? You can easily apply for an IR-1 whenever you want to come back permanently after you file the I-824.

Edited November 14, 2011 by CC90

[danielm 1]

From all the reading I've done they WILL take her greencard but parole her entry. She will be required to go before an immigration judge to plead her case.

Thinking about this more, I guess paroled entry means that you're allowed in the country provisionally until your immigration hearing-?

Then, assuming we leave the country before the hearing (not interested in spending months in the U.S. awaiting trial), she will then have a deportation on her record.

[danielm 1]

It basically means you'll be allowed to leave the airport, etc. pending a hearing. You'll likely be given a Notice to Appear if, in fact, CBP decides to take this route. The unfortunate part is that you'll never know when they'll do this, but it generally has to be pretty clear abuse before they do. From what you said, it would appear to any sensible person that she's abusing it.

Thanks— you supplied this just as I was typing my 'guesstimate' definition above.

Why can't your wife stay 2-3 months behind to wait for the permit? I understand she might be the primary caregiver for your son, but if maintaining the green card is what you want to do, this may be your only option.

You mean, have her stay in the US for a few months to complete the application process for the I-131? We would like to be able to have her enter the US for the next few years... but not THAT much. Our lives are in Europe, our child is in school, we have a lot of responsibilities here, blah blah blah.

But what is wrong with giving up the status? You can easily apply for an IR-1 whenever you want to come back permanently after you file the I-824.

What is the I-824!? That one is new to me. When I google it, I get some rigamarole about requesting duplicate copies to be sent to different consulates.

Thanks.

Edited November 14, 2011 by danmayer

[Brother Hesekiel 2,235]

It will take the signature of a judge to terminate the status of a resident if he or she is inside the U.S. If you are at the airport, coming in from abroad, and ask for admission to the U.S., that's not the case. CBP can determine that your wife abandoned her residency and refuse to admit her to the U.S.

There are several ways this game can be played. She can put in detention, a meeting with a judge pending. She can be asked to sign a form surrendering her Green Card with the promise to be allowed to enter the U.S. afterward to get loose ends tied up. She then would not be admitted but paroled in, already without her previous status. Thus, she would have no status to adjust from, and she would have no legal recourse to see a judge.

But you are correct in your assumption that it's not a question if this will end but only when.

[danielm 1]

There are several ways this game can be played. She can put in detention, a meeting with a judge pending. She can be asked to sign a form surrendering her Green Card with the promise to be allowed to enter the U.S. afterward to get loose ends tied up. She then would not be admitted but paroled in, already without her previous status. Thus, she would have no status to adjust from, and she would have no legal recourse to see a judge.

Aha. Now we're getting to the meat of things— thanks.

The possibility of detention combined with traveling-with-exhausted-two-year-old is prohibitively awful. I think we'll wind up canceling our travel plans and surrendering the green card. (Part of the purpose was to make the biometrics capture in order to complete the petition to remove restrictions, for which I've already paid the application fee... grrrr)