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

[CC90 90]

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?

Yes, there is a form to fill. They'd probably have her do this anyway if she were ever to apply for a non immigrant visa.

However, my point was more in the ROC realm. Letting a conditional card expire under any circumstances (especially when you're outside and you decide to apply for an immigrant visa several years later) would potentially cause you major issues with the DOS.

[danielm 1]

Yes, there is a form to fill. They'd probably have her do this anyway if she were ever to apply for a non immigrant visa.

However, my point was more in the ROC realm. Letting a conditional card expire under any circumstances (especially when you're outside and you decide to apply for an immigrant visa several years later) would potentially cause you major issues with the DOS.

OK, so my question then is: if we surrender the conditional green card before the restrictions have been removed and before it expires, are we then is good standing or do we still face these potential 'major issues' down the road?

[CC90 90]

OK, so my question then is: if we surrender the conditional green card before the restrictions have been removed and before it expires, are we then is good standing or do we still face these potential 'major issues' down the road?

You're in better shape if you go that route.

But I'd definitely look into your wife's inadmissibility, because it could also bar her from an immigrant visa. Adjusting status in the US vs. applying for an immigrant visa are very separate legal processes.

[danielm 1]

You're in better shape if you go that route.

Thanks for clarification.

But I'd definitely look into your wife's inadmissibility, because it could also bar her from an immigrant visa. Adjusting status in the US vs. applying for an immigrant visa are very separate legal processes.

Actually, the green card she currently holds is the result of an application made for immigrant visa from outside U.S. She never successfully adjusted her status while in U.S. Again, it's a long and torturous story...

Edited November 15, 2011 by danielm

[JoannaV 174]

I never understand how people succeed in using their green card in this way, because whenever I've travelled through immigration with my green card they have been asking each and every person "how long were you away for" and "WHY were you away" and they keep asking questions even if the reason for a slightly extended absence was the nursing of a dying parent. And they've always annotated my passport with the length of time I was away. So I don't know how you could keep this up for a long time without having to lie at some point. Or is it just that there are a lot of IO's who don't ask any questions at all?

The one thing I would worry about in your case is that the ROC form asks what addresses you've lived at since receiving the green card. Given that you're basically permanently domiciled outside the US, and never really took up permanent residency(?), your answer to this question cannot have been a full and complete answer? And I worry that one day that could come back to bite you in the butt.

[danielm 1]

I never understand how people succeed in using their green card in this way, because whenever I've travelled through immigration with my green card they have been asking each and every person "how long were you away for" and "WHY were you away" and they keep asking questions even if the reason for a slightly extended absence was the nursing of a dying parent. And they've always annotated my passport with the length of time I was away. So I don't know how you could keep this up for a long time without having to lie at some point. Or is it just that there are a lot of IO's who don't ask any questions at all?

That is a good question. I mean, we've only made two entries to the U.S. so far, so maybe it's something that hasn't yet been a big deal but is right about on the verge of becoming one.

I'm trying to think if the difference could be related to traveling unaccompanied versus traveling with a child and husband who are U.S. citizens, etc... but I'm not sure that goes anywhere toward explaining it.

The one thing I would worry about in your case is that the ROC form asks what addresses you've lived at since receiving the green card. Given that you're basically permanently domiciled outside the US, and never really took up permanent residency(?), your answer to this question cannot have been a full and complete answer? And I worry that one day that could come back to bite you in the butt.

No, it was a full and complete answer— I just listed the address we reside at overseas. If they want to deny the ROC on that basis... ok, fine. I'm definitely not going to lie on any forms— that would be a huge mistake.

[ceadsearc 516]

I'm trying to think if the difference could be related to traveling unaccompanied versus traveling with a child and husband who are U.S. citizens, etc... but I'm not sure that goes anywhere toward explaining it.

How thoroughly you are questioned at POE depends a lot on the CBP agents you encounter. It may be the ones you have seen so far have not paid close attention to what is going on, particularly since you've only entered twice. If you continue to do so, it'll become a pretty obvious pattern even to the least observant agent, which is why it's important for you to decide if you'd rather surrender the green card up front or wait and keep taking chances knowing the risks.

[CC90 90]

Actually, the green card she currently holds is the result of an application made for immigrant visa from outside U.S. She never successfully adjusted her status while in U.S. Again, it's a long and torturous story...

Oh, well, good.

[Fifth Echelon 6]

It is absolutely true that CBP may make the determination that your wife has abandoned her residence, and begin proceedings to follow that determination (which can include, as described above, being paroled into the US pending a hearing before an immigration judge).

However, I think that the odds of this occuring are fairly low. You and your child are USCs. If you travel together as a family, the CBP officer may very well raise questions regarding your wife's extended time spent outside the US. However, by virtue of her marriage to you, a USC, and the fact that you have a USC child, all demonstrate strong ties to the US. If you can demonstrate to any extent that besides the marriage and child, you and your family have ties to the US (any sort of residence, taxes filed, etc), you should be very confident that you will not run into major POE issues.

I have seen cases where LPRs with fewer ties to the US have gotten away with doing what you have, for longer periods, and the most that has happened is some intense questioning at the POE. The worst cases do see their GCs taken away and are charged with abandonment, but you are far from that, IMO. While you may not be in an ideal situation, you are definitely not at the point of no return - or beyond it.

I would strongly recommend the following course of action:

1. Return to the US, and complete the ROC process. It is absolutely critical that you complete this process, because as others have mentioned above, not removing conditions can have future adverse effects.

2. Once your ROC is complete, apply for a Re-Entry Permit. Contrary to what others have said, you don't need to be in the US very long to do this. One month SHOULD be sufficient. Mail the paperwork in, and designate your home country's consulate as where you want the REP sent. You should receive the biometrics notice within a couple of weeks of filing. As soon as you receive this, do a walk in appointment. Once your biometrics are done, you can leave the country.

NOTE: The REP must be applied for only once ROC is complete. An REP is only good for the length of your GC validity.

3. IF you compeleted the ROC, AND received an REP, you are good for another two years of not having to re-enter the US. As you approach REP expiry, you may still have other courses of action available to you.

What you should NOT do at this point:

1. Do NOT let the GC expire without having completed ROC. This will lead to all sorts of problems in the future.

2. Do NOT voluntarily surrender the GC at this point. A voluntary surrender is a much better option than letting a conditional GC expire, but such a surrender involves a declaration of your PERMANENT intent to reside outside the US. This can come back to haunt you in the future. Your wife is certainly not eligible for a nonimmigrant visa (as stated above), and you may run into issues if you try to acquire an immigrant visa again. You haven't lost the GC yet, and probably will not, so you should make every effort to keep it.

[gnasa 3]

I would strongly recommend the following course of action:

1. Return to the US, and complete the ROC process. It is absolutely critical that you complete this process, because as others have mentioned above, not removing conditions can have future adverse effects.

2. Once your ROC is complete, apply for a Re-Entry Permit. Contrary to what others have said, you don't need to be in the US very long to do this. One month SHOULD be sufficient. Mail the paperwork in, and designate your home country's consulate as where you want the REP sent. You should receive the biometrics notice within a couple of weeks of filing. As soon as you receive this, do a walk in appointment. Once your biometrics are done, you can leave the country.

NOTE: The REP must be applied for only once ROC is complete. An REP is only good for the length of your GC validity.

3. IF you compeleted the ROC, AND received an REP, you are good for another two years of not having to re-enter the US. As you approach REP expiry, you may still have other courses of action available to you.

What you should NOT do at this point:

1. Do NOT let the GC expire without having completed ROC. This will lead to all sorts of problems in the future.

2. Do NOT voluntarily surrender the GC at this point. A voluntary surrender is a much better option than letting a conditional GC expire, but such a surrender involves a declaration of your PERMANENT intent to reside outside the US. This can come back to haunt you in the future. Your wife is certainly not eligible for a nonimmigrant visa (as stated above), and you may run into issues if you try to acquire an immigrant visa again. You haven't lost the GC yet, and probably will not, so you should make every effort to keep it.

I agree with this clearly stated opinion. Trying to hang-on to the GC by completing ROC and obtaining a REP is what I would do in your situation. Note that this is all assuming the ROC isn't placed on 'overseas hold'.

[danielm 1]

Thank you very much for all this, Fifth Echelon.

If you don't mind my asking, are you sure about this part?:

2. Do NOT voluntarily surrender the GC at this point. A voluntary surrender is a much better option than letting a conditional GC expire, but such a surrender involves a declaration of your PERMANENT intent to reside outside the US. This can come back to haunt you in the future. Your wife is certainly not eligible for a nonimmigrant visa (as stated above), and you may run into issues if you try to acquire an immigrant visa again. You haven't lost the GC yet, and probably will not, so you should make every effort to keep it.

For what it's worth, I discussed the 'surrender' option with a lawyer yesterday, and he seemed to think it would be straightforward enough to apply for another immigrant visa down the road. Also, it does seem to fly in the face of reason that you would be forced to declare a PERMANENT intent to live outside the US. Now, obviously, reason doesn't necessarily need to come into the picture— there are plenty of irrational, arbitrary aspects of the visa policy. But it seems very weird that one would be forced to make this kind of binding prediction about the future. I have contacted the embassy in Berlin to discuss the abandonment option and they are apparently going to send me the form that one would use to do this, so I can have a look and let you know if it indeed includes this clause.

In general, just to update: we are still considering all options, but leaning towards abandoning the green card and getting a tourist visa. If (and its a big 'if', given some of the advice I've gotten and the extent to which it contradicts advice I've gotten from lawyers) there are no long-term adverse consequences of surrendering the green card, this seems like the most honest and uncomplicated course of action, since we are essentially tourists to the US now, not residents. However, we still have a biometrics appointment scheduled during our US visit— that is, we are still on track for completing the ROC if we decide to go that way.

My main worry this point with the ROC course of action is that they will notify us to ask for an interview to determine legitimacy of marriage after we've done the biometrics and exited the US. However, I took pains to submit lots and lots of evidence of bona fide relationship with the ROC application, so hopefully this won't come to this.

Edited November 18, 2011 by danielm

[danielm 1]

2. Once your ROC is complete, apply for a Re-Entry Permit. Contrary to what others have said, you don't need to be in the US very long to do this. One month SHOULD be sufficient.

Also, for what it's worth, the one time we applied for REP, the biometrics appointment was set about nine weeks from the date that the form was mailed. (This was a situation where we were unfortunately oblivious to the biometrics requirement thanks to some not-great legal advice, so we had already returned to Europe well before we got the notification). Maybe my experience was the outlier, though.

[gnasa 3]

In general, just to update: we are still considering all options, but leaning towards abandoning the green card and getting a tourist visa.

I'm confused, was it not previously established that your wife is subject to a tourist visa ban for another ~4 years due to a previous overstay (even though this adverse factor was not enough to deny LPR)?

[MalaysianGirl 26]

Good question, gnasa.

[danielm 1]

I'm confused, was it not previously established that your wife is subject to a tourist visa ban for another ~4 years due to a previous overstay (even though this adverse factor was not enough to deny LPR)?

Sorry, I forgot to clarify this. I had a consultation with a new lawyer yesterday who contradicted the advice we'd gotten previously and indicated that we should be eligible for tourist visa. (Which makes sense, I guess— it always seemed weird to me that my wife should be allowed to get a green card but not a B2 visa). So, we'll see. We've gotten so much conflicting info at this point that a trip to the embassy seems like the logical, necessary next step.