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

[SimranS 9]

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 totally agree with this- there's very little chance that she would be denied entry and put in detention, even if they do keep her green card pending a hearing. The fact that she will have been out of the country for less than a year and has a USC spouse and child makes it even less likely. As someone else said, USC husband and child would still be allowed in even if she was detained.

This entire B2 overstay ban seems very odd- how did your wife get her current green card? Did she adjust status in the US or get an immigrant visa at a consulate abroad? If she adjusted status then her overstay was forgiven and if she was abroad with a 10-year ban then wouldn't you have needed a waiver for her to get an immigrant visa?

[danielm 1]

Thanks for this. A few comments inline...

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.

This is a great point. I would have never thought of this.

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.

It is and it isn't. There is no protocol for applying from overseas if you're not military, etc etc- for example, there is no address given for green card holders living abroad. However, one is not REQUIRED to apply from within the U.S. in the same hard-coded way that one is required to for the REP— there is a specific line somewhere in the instructions that says something to this effect, that it may be submitted from abroad.

If I were you I'd try to move forward with removal of conditions and then get a re-entry permit ASAP.

I guess what this all boils down to is whether we are willing to suddenly commit to spending 2-4 months in the U.S. to get the REP when we have responsibilities, commitments, school for our son etc etc set up here in Europe. This problem all started because a lawyer (who was quite shrewd in other respects, it must be said) led us to believe that we would be able to get the REP during our first 2 week visit to the US— he essentially overlooked the biometrics requirement. Since then, we have been on a collision course that is now coming to a head...

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.

Indeed. Good point.

[danielm 1]

This entire B2 overstay ban seems very odd- how did your wife get her current green card? Did she adjust status in the US or get an immigrant visa at a consulate abroad? If she adjusted status then her overstay was forgiven and if she was abroad with a 10-year ban then wouldn't you have needed a waiver for her to get an immigrant visa?

Good question. It's a long story, but the short answer is that we got away on a technicality: there was a procedural mistake in the way that her overstayed visa was handled that left her eligible for a green card (she was ultimately deemed 'out of status' rather than 'overstayed' because a customs agent did not actually notate the expiration of her tourist visa when she entered). It's still very much the case, however, that she has no chance of getting a tourist visa until 2016 and, as far as I understand it, nothing that has happened in the meantime (i.e. I-130, getting a green card, etc) alters this.

[danielm 1]

Question for gnasa and others:

We currently have a biometrics appointment scheduled for early December. This biometrics capture is related to the removal of conditions, NOT an application for a re-entry permit. But, if my wife takes the biometrics appointment for the removal of conditions, does anyone know if it can be applied to the re-entry permit? My understanding is that previously, this has not been the case— biometrics captures were junked right after they were taken, not stored in any re-accessible way— but that the system was being overhauled and was recently in flux (so I read).

If we could somehow apply the biometrics capture to the re-entry permit, then it would simplify things greatly, as we wouldn't have wait for a second biometrics appointment to be scheduled.

[SimranS 9]

Question for gnasa and others:

We currently have a biometrics appointment scheduled for early December. This biometrics capture is related to the removal of conditions, NOT an application for a re-entry permit. But, if my wife takes the biometrics appointment for the removal of conditions, does anyone know if it can be applied to the re-entry permit? My understanding is that previously, this has not been the case— biometrics captures were junked right after they were taken, not stored in any re-accessible way— but that the system was being overhauled and was recently in flux (so I read).

If we could somehow apply the biometrics capture to the re-entry permit, then it would simplify things greatly, as we wouldn't have wait for a second biometrics appointment to be scheduled.

For us the biometrics were saved in the system and not junked immediately. It's a long story but when we got our first green card after POE there was a USCIS error on it and we had to send it back in for a replacement. 6 months later when our application was finally processed, we gave the biometrics on May 3, 2011 and received the GC a month later. However, right after receiving the new green card it was stolen and we had to again file for a new one. We filed at the end of June and the new card was issued on July 6, 2011 without a second biometrics appointment. Which basically means our biometrics from May 3 were still in the system and used to issue our new GC more than 2 months later.

[gnasa 3]

Question for gnasa and others:

We currently have a biometrics appointment scheduled for early December. This biometrics capture is related to the removal of conditions, NOT an application for a re-entry permit. But, if my wife takes the biometrics appointment for the removal of conditions, does anyone know if it can be applied to the re-entry permit? My understanding is that previously, this has not been the case— biometrics captures were junked right after they were taken, not stored in any re-accessible way— but that the system was being overhauled and was recently in flux (so I read).

If we could somehow apply the biometrics capture to the re-entry permit, then it would simplify things greatly, as we wouldn't have wait for a second biometrics appointment to be scheduled.

I wouldn't count on having the same biometrics apply to both ROC and a REP. I remember when my wife adjusted from student-to-LPR, there was biometrics for the advanced parole and biometrics for the AOS scheduled within 1 week of each other...

I want to repeat that if you do apply for a REP you need to be in the country when application is received by USCIS (i.e. overnight mail) and for the biometrics appointment. Your wife can leave the US in between these, so there is no 2-4 month requirement to stay while REP is processing. It just requires your wife to make 2 trips for the REP application.

I also want to point out that if you applied for a REP now and it was granted, it would only be valid until the expiration of the current GC (this is the case with my wife's REP). Now the ROC process seems to last longer than the conditional-GC is valid for, so USCIS sends out letters extending the GC for ~1 year. I do not know what expiration a REP would have when ROC is in progress. It certainly will be simpler to wait for the 10-year GC to arrive before applying for a REP, but the risk of 'abandoned residency' will remain until then.

That sucks that your incompetent lawyer overlooked a very important fact, make sure to double check everything as fewer and fewer people seem to put themselves in your shoes when giving advice.

Edited November 15, 2011 by gnasa

[danielm 1]

I wouldn't count on having the same biometrics apply to both ROC and a REP. I remember when my wife adjusted from student-to-LPR, there was biometrics for the advanced parole and biometrics for the AOS scheduled within 1 week of each other...

I want to repeat that if you do apply for a REP you need to be in the country when application is received by USCIS (i.e. overnight mail) and for the biometrics appointment. Your wife can leave the US in between these, so there is no 2-4 month requirement to stay while REP is processing. It just requires your wife to make 2 trips for the REP application.

I also want to point out that if you applied for a REP now and it was granted, it would only be valid until the expiration of the current GC (this is the case with my wife's REP). Now the ROC process seems to last longer than the conditional-GC is valid for, so USCIS sends out letters extending the GC for ~1 year. I do not know what expiration a REP would have when ROC is in progress. It certainly will be simpler to wait for the 10-year GC to arrive before applying for a REP, but the risk of 'abandoned residency' will remain until then.

That sucks that your incompetent lawyer overlooked a very important fact, make sure to double check everything as fewer and fewer people seem to put themselves in your shoes when giving advice.

Thanks for the tips. There are so many moving parts at this point that it's hard for me to grasp some of the scenarios. For example, if the customs agent revokes the green card and offers my wife a paroled entry, can she still proceed with the biometrics appointment? She will not actually physically have a green card at that point. Likewise, can she apply for the REP when the green card has been taken away? It seems she would need to appear before a judge first before anything else could happen, after which... who knows what would happen next?

Similarly, as you say, if we get the REP before the ROC, it might gain us nothing, as the REP would expire when the provisional green card expires.

It seems to me that the only effective way to handle this is to do what you did— get the REP out front, before you're up against other deadlines (ROC) and problems (potential denial-of-entry). Since that window has closed for us, we're continuing to mull but leaning towards surrendering the green card. Another problematic angle is that, if we fly to the U.S. and the green card is revoked, I gather that we basically have to stay there until EVERY issue is resolved, whether it takes weeks, months, a year. If we were to to leave at any point in the process, we would effectively be submitting to deportation. (Edit- clarification: I don't mean that we would have to stay in the US until the REP is granted. I just mean that if a green card is revoked and one is allowed paroled entry to the country, it's really hard to project if and when you might be able to leave again with your green card intact).

Edited November 15, 2011 by danielm

[Mama mia 9]

I am not expert in this matter but I would like to offer this suggestion: When she adjusted her status (by your posts, I think she adjusted from a tourist visa) her overstay was forgiven when she got the green card. So, I think you should try to exchange the green card for a tourist visa at the embassy.

[danielm 1]

I am not expert in this matter but I would like to offer this suggestion: When she adjusted her status (by your posts, I think she adjusted from a tourist visa) her overstay was forgiven when she got the green card. So, I think you should try to exchange the green card for a tourist visa at the embassy.

From what my (sometimes brilliant, sometimes unreliable) lawyer tells me, this is not the case. She attained her green card essentially via a loophole, as noted upthread. The overstay has not been forgiven, as I understand it. I guess if we can look into getting tourist visa, but I don't think this is going to fly.

[bigdog 376]

If CBP figures this out you will have big problems, see an attorney or stray in USA.

[john_and_marlene 162]

I am not expert in this matter but I would like to offer this suggestion: When she adjusted her status (by your posts, I think she adjusted from a tourist visa) her overstay was forgiven when she got the green card. So, I think you should try to exchange the green card for a tourist visa at the embassy.

"Forgiven" is not very accurate term to use regarding overstays and adjustment of status. In considering the factors for granting/denying permanent residence, the immediate relationship to a USC outweighs the negative factor of the overstay and the adjustment will not be denied based on the overstay. However, it does not erase the overstay. If you subsequently lose your permanent residence status, the overstay can still be used to determine eligibility for future entry visas.

[Bobby+Umit 161]

From what my (sometimes brilliant, sometimes unreliable) lawyer tells me, this is not the case. She attained her green card essentially via a loophole, as noted upthread. The overstay has not been forgiven, as I understand it. I guess if we can look into getting tourist visa, but I don't think this is going to fly.

This is sort of correct.

I *really* hate the word "forgiven" when overstay is mentioned, or any other factor when adjusting.

It is not "forgiven", it simply didn't rise to the level that would result in denial of the status change.

It is still an "adverse factor" - get enough of them, raise your level, and you will be denied.

This is not a loophole - it's the way the law is written and the way USCIS has judged cases.

[danielm 1]

This is sort of correct.

I *really* hate the word "forgiven" when overstay is mentioned, or any other factor when adjusting.

It is not "forgiven", it simply didn't rise to the level that would result in denial of the status change.

It is still an "adverse factor" - get enough of them, raise your level, and you will be denied.

This is not a loophole - it's the way the law is written and the way USCIS has judged cases.

Agreed, 'forgiven' is a misleading term, 'adverse factor' is a more accurate reflection of how the system works.

There actually *was* a loophole involved in our case that allowed my wife to get a green card when her overstay would have otherwise disallowed it, but it's a long, weird story (discussed briefly upthread) and not worth belaboring further. I think this issue of the overstay is sidetracking the conversation a bit-- suffice to say that *probably* there is no visa that my wife can obtain to enter the US over the next several years other than a green card. Exchanging the green card for a tourist visa is not a likely solution to our situation.

[CC90 90]

Not knowing all the details, I cannot accurately comment, but that overstay inadmissibility (if it does relate to an inadmissibility) will bar her from getting an immigrant visa, as well.

USCIS is authorized to keep biometrics on file for no longer than 6 months. If you apply for the REP before the 6 months is up since the last time you went, there's a fairly good chance they won't call you again.

Also keep in mind that the REP can be sent to a consulate overseas; you just have to be in the US when it is applied for. If bio is required, you should receive a notice within a week, do a walk-in, and then you're free to leave. In 2-3 months, it'll be ready at the consulate. Doubt you'll have to stay any more than a few weeks in the US to do this.

Also, do NOT let the green card expire on removal of conditions; the DOS likes to determine these cases as frivolous marriages and the burden of proof will fall on you.

[danielm 1]

Also keep in mind that the REP can be sent to a consulate overseas; you just have to be in the US when it is applied for. If bio is required, you should receive a notice within a week, do a walk-in, and then you're free to leave. In 2-3 months, it'll be ready at the consulate. Doubt you'll have to stay any more than a few weeks in the US to do this.

I suppose it all depends. We tried to apply for REP when we first visited the U.S. together in late 2009 (at this time, we weren't aware of the biometrics requirement, due to misleading advice from lawyer). We mailed the application in late December and did not receive the biometrics appointment letter until Feb 17th (at which point, we were already back in Europe-- the start of our woes).

Also, do NOT let the green card expire on removal of conditions; the DOS likes to determine these cases as frivolous marriages and the burden of proof will fall on you.

Yes, this is a good point that somebody else made. So, if you go 'surrender' the green card at a US embassy, than you're in a better spot and don't have burden of proof put on you down the road? That's what the other poster said-- is that your understanding as well?