expired green card dilemna

[aubry 0]

You can go to the interview, but you won't be approved. Her affidavit of support hasn't been accepted yet because they want proof she's domiciled in the US. Until they get that proof they won't accept her affidavit of support, and you can't get a visa. The consulate in HK will probably give you a blue slip for the proof of domicile. They may also revoke your student visa since you are outside the US, and have proven immigrant intent. If it were me, I'd cancel the interview and tell them you'll reschedule after you've resolved the affidavit of support issue.

If your mother is going to try to get the SB1 then I suggest she get started quickly. The process can be time consuming. It usually involves TWO applications and TWO interviews. The first application is a DS-117, which is a request for the consulate to determine her status. She'll need to pay the filing fee for the DS-117 ($380), and include her green card, proof of travel dates outside the US, and whatever evidence she's using to claim that her absence was unforeseen and beyond her control. If the DS-117 is approved then she'll be scheduled for a regular immigrant visa interview, which means submitting a DS-230 (with fees), medical exam, the whole nine yards. Once that's approved she'll get an SB-1 visa. She'll get a new green card when she reenters the United States. This whole process could take several months, but it's still faster than a new immigrant visa petition.

Actually, my cousin is my joint sponsor since my mom doesn't have enough income. So they only need the proof of domicile of her because she's been staying outside of US for so long, i think. Any idea of how long for reschedule the interview takes ? What if they declined my interview. Does it mean that i'll be rejected to try again under my mom's petition ? And would i get all the documents back that i'd submitted ? BTW, why would they take away my student visa. I mean, they knew that i have immigrant intent when i applied for student visa. I wrote it on the form. So, they should have known it better than anyone else.

She's going to do it on Wed. If she got approved. Should i attend the interview on April 26th or wait until she got passed the regular immigrant visa ? What the smart moves are ? Thanks a lot !

[JimVaPhuong 4,863]

Actually, my cousin is my joint sponsor since my mom doesn't have enough income. So they only need the proof of domicile of her because she's been staying outside of US for so long, i think. Any idea of how long for reschedule the interview takes ? What if they declined my interview. Does it mean that i'll be rejected to try again under my mom's petition ? And would i get all the documents back that i'd submitted ? BTW, why would they take away my student visa. I mean, they knew that i have immigrant intent when i applied for student visa. I wrote it on the form. So, they should have known it better than anyone else.

She's going to do it on Wed. If she got approved. Should i attend the interview on April 26th or wait until she got passed the regular immigrant visa ? What the smart moves are ? Thanks a lot !

Both sponsors, primary and joint, must be domiciled in the United States. They don't always require proof of domicile. Evidence of domicile is usually sufficient. If a sponsor is living in the United States, provides a US mailing address on the affidavit of support, provides tax returns or transcripts that show a US address, and the government has no evidence to suggest that the sponsor has left the United States and not returned, then they'll usually accept that the sponsor is domiciled in the United States. Lacking this basic evidence, they'll suspect the sponsor is not domiciled in the United States and they'll ask for proof. This is what happened to your mother. Most sponsors who are outside the US would either submit proof that they've maintained their US domicile in their absence, submit proof that they will reestablish domicile in the US on or before the date the intending immigrant enters the US (this is difficult to prove), or hop on the next plane back to the US so they can reestablish their domicile. Your mom can't do any of these things. She can't prove she's maintained domicile in the US in her absence, and she can't return to the US because of the length of time she's been absent. As soon as she tries to enter the US then they'll determine she's abandoned her residence, which will effectively kill your petition.

Each consulate has it's own policies and procedures for anything that isn't specifically spelled out in the Foreign Affairs Manual. However, generally, they will permit an applicant to reschedule an interview if they can't get their documents and evidence together in time. They usually allow one year from the time the priority date becomes current for both the petitioner and beneficiary to act on the approved petition. I doubt they'll decline your request to reschedule. I suggest you contact the consulate in Hong Kong, explain your situation, and ask how you should proceed.

Some non-immigrant visas allow for immigrant intent. A student visa does not. If they know that the non-immigrant visa applicant intends to eventually immigrate through a family member then they'll weigh the odds of the applicant violating immigration law after entering with the non-immigrant visa in order to attempt to remain in the United States. If they believe the odds are low then they have the discretion to approve the visa. In your case, they might look at the potential hurdles that remain in order for your immigrant visa to be approved, and consider you to be a much higher risk to intentionally overstay in the US if you were permitted to reenter with a student visa. Considering the risk, they could choose to revoke your student visa.

What is it that your mom is going to do on Wednesday? Start the SB-1 process? Unless you're certain she can complete everything before your interview, I would reschedule the interview. Before they'll issue a visa to you they will need proof of her domicile in order to accept her affidavit of support. This means her DS-117 application has to be approved, her SB-1 visa has to be issued, she has to return to the US and reestablish domicile, and proof of her domicile has to be submitted to NVC or the consulate. If you attend an interview before all of this has been done then you'd have wasted a trip to Hong Kong.

FWIW, what your mother is trying to do is contrary to the intent of US family immigration law, which is to reunite families. If she intends to stay in Hong Kong then issuing a visa to you would not serve the purpose of family reunification, and they would assume she's only trying to use her status as an LPR to pass out immigration benefits to her eligible family members. Consulates don't like it when people do this, and will generally go out of their way to try to stop them using whatever technicality they can find.

[Boiler 45,525]

they would assume she's only trying to use her status as an LPR to pass out immigration benefits to her eligible family members.

That would seem to be the whole point of this thread.

[aubry 0]

What is it that your mom is going to do on Wednesday? Start the SB-1 process? Unless you're certain she can complete everything before your interview, I would reschedule the interview. Before they'll issue a visa to you they will need proof of her domicile in order to accept her affidavit of support. This means her DS-117 application has to be approved, her SB-1 visa has to be issued, she has to return to the US and reestablish domicile, and proof of her domicile has to be submitted to NVC or the consulate. If you attend an interview before all of this has been done then you'd have wasted a trip to Hong Kong.

FWIW, what your mother is trying to do is contrary to the intent of US family immigration law, which is to reunite families. If she intends to stay in Hong Kong then issuing a visa to you would not serve the purpose of family reunification, and they would assume she's only trying to use her status as an LPR to pass out immigration benefits to her eligible family members. Consulates don't like it when people do this, and will generally go out of their way to try to stop them using whatever technicality they can find.

Thank you so much for the details & advices.

Yes, She's going to do the SB-1 process. And she'll be notified whether she'll be approved or not in 1 to 2 weeks as the U.S. consulate in HK states. Yeah, this is what i've been contemplating of reschedule the interview before her SB-1 process whether will be granted or refused. And, even going through the entire immigrant visa process again, right ? Cuz i also have to decide to register the new school before April. Should i go for it whether her SB-1 will be granted or refused ? Since there's noting i can do before that but waiting. (Sorry for my mumbling. I'm so stressed out by all these. That's why you might not understand what i'm trying to say).

[aubry 0]

So, my mom went to the US consulate in HK & was going to apply for SB-1 yesterday. But she was told that she needs an appointment (She went straight there because as their website didn't state clearly that she needed to make an appointment). The lady who answered my mom's questions were so nice and gave us very useful & clear information of what we should do. Even told us to reschedule my interview (I heard it through the phone). Anyway, so i just sent out an email to make an appointment for my mom and asked for reschedule the interview. Hope they could reply us asap.

[RICARDO4EVA2 194]

Nice,, just keep us updated after the interview

[JimVaPhuong 4,863]

So, my mom went to the US consulate in HK & was going to apply for SB-1 yesterday. But she was told that she needs an appointment (She went straight there because as their website didn't state clearly that she needed to make an appointment). The lady who answered my mom's questions were so nice and gave us very useful & clear information of what we should do. Even told us to reschedule my interview (I heard it through the phone). Anyway, so i just sent out an email to make an appointment for my mom and asked for reschedule the interview. Hope they could reply us asap.

Great. Things are moving along fairly quickly. Good luck!

[aubry 0]

So the HK US consulate has given my mom an appointment on March 22nd. And they also cancelled my original interview as per my requested. Now i just got this letter from them. Just wanna know what exactly they meant on some part that i'm not fully understand it. Here it is :

I refer to your application for your immigration visa. Section 203(g) of the immigration and nationality act requires that you apply for you immigrant visa within one year of being advised to do so. You were advised to do so on February 29, 2012 when we sent the Packet 4 letter or the packet 4(a) letter to you.

This letter serves as formal notification that your application and your petition will be cancelled on February 28, 2013 (one year from date of your first letter to you) if you fail to appear for a formal visa interview with a consular officer prior to that date........

Please be advised that since you did not appear for an interview during the original time period for which we allotted a visa number for you, a visa number (if required in your case) may not be available at the time you eventually schedule a visa interview appointment.

The last part of this letter is what i do not fully understand of its meant.

[Boiler 45,525]

Retrogression may occur.

[JimVaPhuong 4,863]

Please be advised that since you did not appear for an interview during the original time period for which we allotted a visa number for you, a visa number (if required in your case) may not be available at the time you eventually schedule a visa interview appointment.

The last part of this letter is what i do not fully understand of its meant.

A visa number must be available at the time the visa is issued. A visa number is available to you now because your priority date is current. However, as Boiler noted, the cutoff dates can move backwards - called retrogression. If that happens before you schedule your interview, and if the result moves the cutoff date before your priority date, then there will no longer be a visa number available for you.

In other words, your visa must be issued before February 28, 2013, or before a retrogression that causes the cutoff date to be moved before your priority date. Nobody can predict with any certainty whether a retrogression will occur. There was a retrogression for employment based visas in 2007 and 2009. There was a retrogression of family preference visas last year. It happens occasionally.

[aubry 0]

A visa number must be available at the time the visa is issued. A visa number is available to you now because your priority date is current. However, as Boiler noted, the cutoff dates can move backwards - called retrogression. If that happens before you schedule your interview, and if the result moves the cutoff date before your priority date, then there will no longer be a visa number available for you.

In other words, your visa must be issued before February 28, 2013, or before a retrogression that causes the cutoff date to be moved before your priority date. Nobody can predict with any certainty whether a retrogression will occur. There was a retrogression for employment based visas in 2007 and 2009. There was a retrogression of family preference visas last year. It happens occasionally.

Understood. So, the sooner i schedule the interview, the better i am, huh ?

Another question, what if my mom won't be approved for DS-117. It means my case will be died, isn't it ? Do i need to inform US consulate about it ? And i'll no longer to schedule the interview, right ?

[JimVaPhuong 4,863]

Understood. So, the sooner i schedule the interview, the better i am, huh ?

Another question, what if my mom won't be approved for DS-117. It means my case will be died, isn't it ? Do i need to inform US consulate about it ? And i'll no longer to schedule the interview, right ?

Yes. If your mother's DS-117 is denied then your mother is no longer a permanent resident, and her petition for you will be dead. You don't have to tell the consulate because they are the ones who are going to make the decision on the DS-117. You won't be able to schedule an interview because there will no longer be an approved petition.

[aubry 0]

My mum went to the appointment yesterday. After the staff (he was pretty nice) examined her documents before paying the visa fee. He gave some advices to my mum and honestly told her that the chances of her being approval is almost zero and suggested her not to waste the money. Because the documents she prepared for are so weak and inadequate. He's witnessed many people who tried the same thing but were being rejected based on his experiences. He also said that if my mum insisted to meet the consul. She could give it a shot. But it's just waste of money and she's gonna be sent away immediately. Unless, she could prove that she had surgery to make her not being able to get on the plane or some other serious diseases or she was in a prison. But with the documents of my mum had prepared for are just not good enough to convince the consul. Plus, the worst case scenario of her is that not going back to the US since 2008 and her GC is expired. The consul just simply hold it against her. Then, he suggested that i could try Diversity visa program. And he told my mum to sleep on it, come back and make another appointment whether she wanna give it a try after consult with me or having more solid evidences.

Since my case is already "dead". Will they send me back the documents i had submitted (birth certificate) after one year has passed ?

The guy was seriously trying to help us, i think. He spent over an hour to explain and told my mum about her situation is. There's no need to consult with an attorney of what my mum could do next, is there ? What you guys think ? Thanks in advance.

[Boiler 45,525]

What were her reasons? Her evidence?

[aubry 0]

What were her reasons? Her evidence?

Medical. Her regular checkups for medication. She has hypertension and had a slight stroke 10 years ago but fully recovery after rehabilitation. Her right eye is impaired due to pre-retinal haemorrage affected in 2006.

A letter from doctor of hospital. But it basically states what her condition is and what medication she has been taking. (Seriously, nothing helpful of this letter when i first read it).

The staff said that lots of people who also have the same or similar illness same as my mum. But it's not that severe to make her not being able to get on the plane. So this is not an excuse.

Her records of entry and departure and the duration of her living outside of the US since 2001 to 2008.

Edited March 23, 2012 by aubry