2 yrs of GC expired travel to VN and US

[hniHnitsuJ 8]

Hi All,

I need help for my aunt. My uncle went back to Viet Nam 2006 married my aunt for 2 years of GC. She came to US 2007. After my aunt has living with my uncle for more than a year. He passed away 2008. In 2009, she had decided to go back to VN with her 2 years of GC, and she actually stay in VN more than 6 months (with her 2 yrs GC expired). Last year 2011, she came to US to visit my family, and went back to Viet Nam again by the end of the year.

My question is how she can apply for 10 GC when my uncle has passed away, and how would she able to travel back to Viet Nam in 2009 with her 2 years of GC. Also, how can’t she visited my family last year 2011, and would able to go back to Viet Nam. Now, she wants to come to the US end of this year, and the travel agency in VN told her 2 years of GC has expired, and she can not purchase the ticket come to US. I have asked her why is the US and VN government allow her to go-in-out with her 2 years of GC. Her answer is I don’t know.

Thank you advanced for all your help and input.

Loi

[Hypnos 6,576]

If her conditional (2 year) green card has expired, and from what you say it expired a long time ago, then there is nothing she can do. She did not file to remove conditions on it (turn it from a two year green card into a ten year green card) in a timely manner so her green card is considered abandoned and her permanent residency is ended.

Assuming her husband was a US citizen, she could have applied for a new green card by filing an I-360 seeking widow status within two years of his death. Since you stated he died in 2008 and it is now 2012, that option is now ended. A transitional period in which special rules applied for widows and widowers ended in October 2011 and so that is likewise not an option.

In short, she no longer has any recourse to a green card or being able to live in the United States.

Edited September 25, 2012 by Hypnos

[aaron2020 11,651]

Hi All,

I need help for my aunt. My uncle went back to Viet Nam 2006 married my aunt for 2 years of GC. She came to US 2007. After my aunt has living with my uncle for more than a year. He passed away 2008. In 2009, she had decided to go back to VN with her 2 years of GC, and she actually stay in VN more than 6 months (with her 2 yrs GC expired). Last year 2011, she came to US to visit my family, and went back to Viet Nam again by the end of the year.

My question is how she can apply for 10 GC when my uncle has passed away, and how would she able to travel back to Viet Nam in 2009 with her 2 years of GC. Also, how can’t she visited my family last year 2011, and would able to go back to Viet Nam. Now, she wants to come to the US end of this year, and the travel agency in VN told her 2 years of GC has expired, and she can not purchase the ticket come to US. I have asked her why is the US and VN government allow her to go-in-out with her 2 years of GC. Her answer is I don’t know.

Thank you advanced for all your help and input.

Loi

Unfortunately, your aunt failed to remove the condition on her 2 years conditional green card. Now, it had expired and it is too late for her.

It is her responsibility to understand how to maintain her green card. It is not the US government' responsibility.

Sorry, but your aunt no longer has permission to enter and live in the US. There is nothing that can be done to change this.

[hniHnitsuJ 8]

Assuming her husband was a US citizen, she could have applied for a new green card by filing an I-360 seeking widow status within two years of his death. Since you stated he died in 2008 and it is now 2012, that option is now ended. A transitional period in which special rules applied for widows and widowers ended in October 2011 and so that is likewise not an option.

Thanks Hypnos and aaron2020

Yes, He was an USC. So, there isn't any option for my aunt to apply 10 GC?

Any other advice or help?

[aaron2020 11,651]

Assuming her husband was a US citizen, she could have applied for a new green card by filing an I-360 seeking widow status within two years of his death. Since you stated he died in 2008 and it is now 2012, that option is now ended. A transitional period in which special rules applied for widows and widowers ended in October 2011 and so that is likewise not an option.

Thanks Hypnos and aaron2020

Yes, He was an USC. So, there isn't any option for my aunt to apply 10 GC?

Any other advice or help?

Your aunt has no option. She failed to remove the condition on her green card as required. She no longer has a valid green card and there is nothing that can be done to change that.

[JimVaPhuong 4,863]

Yes, He was an USC. So, there isn't any option for my aunt to apply 10 GC?

Any other advice or help?

No, sorry. She had several chances to keep her permanent resident status, and it sounds as if she blew each one.

She could have filed an I-751 within 90 days before her conditional green card expired. The I-751 is normally jointly filed, but the immigrant can self-petition if the married ended with the death of her US citizen spouse. She missed that opportunity.

She could have filed for a new green card based on being the spouse of a US citizen at the time of the US citizen's death. She had two years from the time of his death to file an I-360. She missed that opportunity. My suspicion is that USCIS knew of her husband's death, and they had granted her a grace period until the end of the grandfathering period for the I-360, which was October 28, 2011. My further suspicion is that's why they admitted her last year even though she had an expired green card. I think they were giving her every opportunity to get the I-360 filed. She blew it.

She's stayed out of the US long enough to have abandoned her permanent resident status, even if she had an unconditional, valid, and unexpired green card.

A long shot would be an attempt at a returning resident visa. She'd only get one shot at that. If it's denied then she can't try again. This means she'd need to present a VERY compelling case at the consulate. She should schedule a visit with Marc Ellis. If she can manage to get a visa and get back into the US then she's got a chance at making an appeal for a late I-360 filing.

[Hypnos 6,576]

As I understand it (and I am unfortunately quite familiar with this niche area) the two year deadline for a widow/er I-360 is absolute; there are no late filings accepted under any circumstances.

Which, on the face of it, seems fair. Two years is a long time.

[aaron2020 11,651]

No, sorry. She had several chances to keep her permanent resident status, and it sounds as if she blew each one.

She could have filed an I-751 within 90 days before her conditional green card expired. The I-751 is normally jointly filed, but the immigrant can self-petition if the married ended with the death of her US citizen spouse. She missed that opportunity.

She could have filed for a new green card based on being the spouse of a US citizen at the time of the US citizen's death. She had two years from the time of his death to file an I-360. She missed that opportunity. My suspicion is that USCIS knew of her husband's death, and they had granted her a grace period until the end of the grandfathering period for the I-360, which was October 28, 2011. My further suspicion is that's why they admitted her last year even though she had an expired green card. I think they were giving her every opportunity to get the I-360 filed. She blew it.

She's stayed out of the US long enough to have abandoned her permanent resident status, even if she had an unconditional, valid, and unexpired green card.

A long shot would be an attempt at a returning resident visa. She'd only get one shot at that. If it's denied then she can't try again. This means she'd need to present a VERY compelling case at the consulate. She should schedule a visit with Marc Ellis. If she can manage to get a visa and get back into the US then she's got a chance at making an appeal for a late I-360 filing.

Even if she could get a returning resident visa, what would be the purpose? How would she go about getting an unconditional regular green card? I don't see any scenario where she can reacquire that status. She can't file to remove the condition. She can't file an I-360 since she has no valid excuse for not filing in a timely manner under the grandfather clause.

[JimVaPhuong 4,863]

Even if she could get a returning resident visa, what would be the purpose? How would she go about getting an unconditional regular green card? I don't see any scenario where she can reacquire that status. She can't file to remove the condition. She can't file an I-360 since she has no valid excuse for not filing in a timely manner under the grandfather clause.

A returning resident usually gets a new green card when they arrive, but they can instead parole her into the US instead of admitting her as a returning resident. Parole is often used to afford an immigrant an opportunity to appeal a case in immigration court. Of course, the appeal would be denied by the immigration judge, and probably also denied by the BIA, but I think she's got a chance in a federal appeals court, especially if it's in the 9th circuit court district.

[aaron2020 11,651]

A returning resident usually gets a new green card when they arrive, but they can instead parole her into the US instead of admitting her as a returning resident. Parole is often used to afford an immigrant an opportunity to appeal a case in immigration court. Of course, the appeal would be denied by the immigration judge, and probably also denied by the BIA, but I think she's got a chance in a federal appeals court, especially if it's in the 9th circuit court district.

Now that's a big stretch. The most miniscule of chance will cost a small fortune. Going up to the 9th Cir. will not be cheap. If the aunt wants to pursue this chance, there will be a lawyer who will gladly take her money to do what she wants.

The 9th Cir. has to provide some reasonable rationale allowing the aunt to get a green card. Given how often the 9th is criticized and overturned on appeals, it's hard to imagine granting the petitioner relief based on the facts presented by the OP.

[JimVaPhuong 4,863]

Now that's a big stretch. The most miniscule of chance will cost a small fortune. Going up to the 9th Cir. will not be cheap. If the aunt wants to pursue this chance, there will be a lawyer who will gladly take her money to do what she wants.

The 9th Cir. has to provide some reasonable rationale allowing the aunt to get a green card. Given how often the 9th is criticized and overturned on appeals, it's hard to imagine granting the petitioner relief based on the facts presented by the OP.

No doubt it's a stretch. That's why I said it's a long shot.

The basis would have to be that there is a reasonable excuse for the late filing of the I-751. INA 216 is vague about what constitutes "good cause and extenuating circumstances" for an untimely filed I-751.

[ScottThuy 140]

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