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

[CC90 90]

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.

While CBP is perfectly within their rights to do this, I just don't see them splitting up a family with 2 USC's over this. It just doesn't usually happen.

[CC90 90]

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.

Your I-130 is valid as long as you're married. Thus, if you were ever to apply for an immigrant visa based on your marriage, you will file an I-824 with USCIS to forward the previous I-130 to the consulate for processing of the immigrant visa. You wouldn't file the I-130 again.

There's nothing wrong with giving up the status if you're going to be out for a while. If you ever want to permanently relocate back to the US, just plan several months ahead and you'll have no issues.

Otherwise, have her stay until the I-131 is approved. Show them you care about the status instead of continually abusing it. They only know if you tell them.

[danielm 1]

Your I-130 is valid as long as you're married. Thus, if you were ever to apply for an immigrant visa based on your marriage, you will file an I-824 with USCIS to forward the previous I-130 to the consulate for processing of the immigrant visa. You wouldn't file the I-130 again.

There's nothing wrong with giving up the status if you're going to be out for a while. If you ever want to permanently relocate back to the US, just plan several months ahead and you'll have no issues.

Otherwise, have her stay until the I-131 is approved. Show them you care about the status instead of continually abusing it. They only know if you tell them.

Thanks a lot for your help— I think I have the lay of the land now.

The frustrating thing is that this whole process— all the paperwork, fees, anxiety, etc— is pretty much all just about creating a way for my increasingly-aged parents to see their grandchild without flying to Europe, to have Xmas together at their home, etc. It continually amazes me that there isn't a more sane way to accommodate this. But, then, we pretty much forfeited sanity as an option once my wife wound up with a prior overstay on her record.

[ceadsearc 516]

It sounds like your best option is to surrender the green card as there is no way the charade can go on for much longer and it may not be pretty when it ends. Whenever you want to relocate permanently, if you do, you can file for an IR-1 for your wife.

That being said, you and your child are USCs, so were she to be detained you guys would still be allowed into the country.

[CC90 90]

While CBP is perfectly within their rights to do this, I just don't see them splitting up a family with 2 USC's over this. It just doesn't usually happen.

I meant refusing admission/parole and denying entry.

[VanessaTony 3,567]

I meant refusing admission/parole and denying entry.

I agree she is more likely to be paroled entry pending a hearing before an immigration judge.

I also agree that it seems the best option would be to surrender the GC and reapply if/when you want to move back. The child is a USC so can freely travel to the US, which takes care of the child going to the US to see it's grandparents. Mum won't be able to go but far better than being found to be a GC abuser :S Might make it harder later on (though I don't know that for sure).

[milimelo 4,418]

Why would you pay for removal of conditions when you're not in the US, and did you expect it to be approved? Only military can do ROC filing from overseas as the bases are considered US soil.

[Zen Den 18]

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)

is there really such a thing as abusing the greencard? isn't it issued so that one is able to travel outside the US and allowed entry back? i hope to be enlightened on this =)

[MalaysianGirl 26]

is there really such a thing as abusing the greencard? isn't it issued so that one is able to travel outside the US and allowed entry back? i hope to be enlightened on this =)

If you have a green card it means you're a Legal Permanent Resident. And if you are a Legal Permanent Resident, it means you have to RESIDE in the US, i.e. live in the US more than you live outside the US. You can leave the US for visits to other countries, sure, but you cannot live in those countries for a period longer than living in the US, in one given year. If you do, what's the point of the green card? You're not permanently residing in the US, right?

[mike42979 57]

Thanks a lot for your help— I think I have the lay of the land now.

The frustrating thing is that this whole process— all the paperwork, fees, anxiety, etc— is pretty much all just about creating a way for my increasingly-aged parents to see their grandchild without flying to Europe, to have Xmas together at their home, etc. It continually amazes me that there isn't a more sane way to accommodate this. But, then, we pretty much forfeited sanity as an option once my wife wound up with a prior overstay on her record.

Im confused, if you got a green card doesnt this mean that the overstay was forgiven? You cant overstay a greencard?

[MalaysianGirl 26]

Im confused, if you got a green card doesnt this mean that the overstay was forgiven? You cant overstay a greencard?

To mike42979, the OP's wife is not eligible for a tourist visa because of her prior overstay (see highlighted part below). That's what he meant.

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.

Edited November 15, 2011 by MalaysianGirl

[Brother Hesekiel 2,235]

Exchange your wife's Green Card for a B2 visa.

[MalaysianGirl 26]

Exchange your wife's Green Card for a B2 visa.

The OP said she cannot get a B2 visa due to prior overstay.

[danielm 1]

Why would you pay for removal of conditions when you're not in the US, and did you expect it to be approved? Only military can do ROC filing from overseas as the bases are considered US soil.

The form was submitted from within the U.S., and we're flying to the U.S. to do the biometrics. My assumption/hope was that the removal of conditions is only about the DHS assessing whether the marriage is bona fide, not doing a 360 evaluation of every aspect of our situation (i.e. looking at where we reside). Obviously, I could have easily been wrong about this and they could take a look at our situation and say, 'no way.' But the alternative (not being able to travel to U.S. as a family for four more years, when my wife's 10 year-ban for her overstay expires) isn't great either, so it seemed worth a try.

What got lost in my thinking, though, was the increasingly-real chance of being denied entry. There were so many things to think about in terms of the removal of conditions application that it sort of sunk out of view in my mind.

The OP said she cannot get a B2 visa due to prior overstay.

Yes, this is correct.

Edited November 15, 2011 by danmayer

[gnasa 3]

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)

Just to offer another point of view. My wife and I are in the exact same situation as you, but my wife obtained a re-entry permit after our departure. Note that you can leave the US after I-131 application is received by USCIS and the later biometrics appointment.

search for this thread on this forum for my experience: 'Re-Entry Permit: Applied After Departure'

In short, it depends on if you want the option to live in the US. I would think twice about volunteering to give up your wife's GC. I say 'volunteering' because that is what you should do at a US consulate/embassy versus just letting it expire (or getting 'deported'). By voluntary surrendering the GC it removes any doubt for the USCIS of the LPR intentions, which is important for future tourist visa's or green card applications. Your wife's previous overstay complicates things though, I'm not sure if the ban applies after the LPR was issued.

My wife and I want the option of returning to the US on a short time notice due to certain career options and the temporary nature of my assignment in Europe, so we spend the money on multiple RT flights to take care of biometrics and REP applications. Also note that with a REP the USCIS cannot use the time during its validity as evidence that the LPR abandoned residency. Detention and deportation without leaving the airport is a risk you take, but I would say there is a greater chance that if USCIS determines residency is abandoned, they would take GC and parole your wife into the US.

I'm not positive what one poster stated that ROC can only be done from within US is correct. If you search ROC from abroad there seem to be many examples.

If I were you I'd try to move forward with removal of conditions and then get a re-entry permit ASAP. Another thing you should look into, if you work for a 'US company/gov...' and are eligible for expeditious naturalization.

In addition, while most information on this forum is correct (and very helpful), some posters tend to take black & white views and always state the maximum consequences, so interpret accordingly. For example: 'If you have a green card it means you're a Legal Permanent Resident. And if you are a Legal Permanent Resident, it means you have to RESIDE in the US, i.e. live in the US more than you live outside the US. You can leave the US for visits to other countries, sure, but you cannot live in those countries for a period longer than living in the US, in one given year. If you do, what's the point of the green card? You're not permanently residing in the US, right?' To that I respond that the USCIS recognizes that some LPR's need to work/live abroad for extended times, thus the re-entry permit (sometimes 2 in a row or up to 4 years) is a valid legal way to maintain the green card during an extended 'temporary' stay abroad.