Transferred to Canada - Can We Still File?

[Sufrank 4]

After living in the U.S. for 20 months, during which we had a kid and bought a house, my wife's company transferred her to Canada. We left the U.S. just before the 90 day window to file to remove conditions opened. Now, I'm wondering if they'll accept the petition to remove conditions, or if they'll summarily reject it since we're currently outside of the country.

To remove conditions and remove unconditional residency do we have to currently reside in the country? Are we screwed since we moved out of country, and simply have to allow her CR-1 to lapse?

A Canadian immigration lawyer said it might be possible to put a hold on her visa so that it essentially freezes it - allowing her to resume her status if/when we move back to the U.S. - any information on that?

I'm worried about spending $600 to file something that they might summarily reject given where we currently live, even though we have a strong case otherwise.

[Little_My 464]

She does not have a CR-1 anymore - CR-1 is a spousal visa used to enter the US for the purpose of becoming a greencard holder. A greencard is not a visa, it is a residence permit.

Her current greencard has an expiration date - it will expire 2 years after it was issued. The thing with a conditional greencard is that it is not just the card that expires on that date, it is also the card-holder's status. That means that if your wife does not file for ROC in time before her greencard expires, she will lose not only her card but her status as a permanent resident in the US. This means that if and when you eventually want to return to the US, you would have to start the whole GC process from scratc, applying for a CR-1 visa (or at that point probably IR-1) all over again, pay all the fees again, etc.

My understanding is that being abroad won't prevent you from filing for her ROC, but she would have to come back to the US for her biometrics and for the interview, if you were scheduled for one. In addition, a permanent resident is supposed to reside in the US. You don't state in your post how long you plan to be in Canada, but it seems that it's not a temporary or a brief visit - in which case you should also apply for a re-entry permit which will protect her greencard status for up to 2 years of her being abroad. Otherwise, once she has been gone for over 12 months, she is considered to have abandoned her permanent residence in the US. You can't file for the re-entry permit before filing for ROC though - so if I were you, I'd get on that ROC application asap. You have to have a US address though.. and as a permanent resident, she is required to notify USCIS of address changes, which you probably didn't do when you moved to Canada.

If you think you will be in Canada for several years, then she can always voluntarily relinquish her greencard and then just re-apply when it comes time to return to America.

[Kathryn41 3,205]

You may find that she has lost her green card by moving to Canada. One of the requirements of maintaining permanent resident status is to remain resident in the US. Taking up residence in another country means she no longer satisfies the requirements of being a permanent resident. Since you have moved to Canada USCIS would more than likely view her as giving up her residence in the US. The only option you might be able to use is if the relocation is considered temporary - less than 2 years. She can apply for special permission to be out of the US for those two years. This should be applied for prior to leaving the country, however, so USCIS may not allow it. It is also no guarantee that USCIS will agree that she has not abandoned her status, but if you have maintained all of your residency ties in the US - house, bank accounts, DL, vehicle licenses - and the job in Canada is a contractual one for a specified period of time for less than 2 hears - you might be successful.

The Canadian Immigration lawyer may know Canadian immigration law but does not know US Immigration law. There is no way to put her visa status 'on hold'. When her two year card expires, her status expires. It cannot be extended. In order to remain a Permanent Resident, she must apply to remove her 'conditional status' by submitting the I-751 form supported by the documents that prove you two have a valid marriage. It may be a moot point, however, because if you are not residing in the US, she may be considered to have abandoned her permanent resident status in the US.

If you intend to be in Canada for a while, it is probably easier for you not to file to remove conditions as it would probably be a waste of money. When you decide you wish to return to the US - if ever - then you can apply for another IR-1 visa which should pose no difficulties for either of you.

[bigdog 376]

You may find that she has lost her green card by moving to Canada. One of the requirements of maintaining permanent resident status is to remain resident in the US. Taking up residence in another country means she no longer satisfies the requirements of being a permanent resident. Since you have moved to Canada USCIS would more than likely view her as giving up her residence in the US. The only option you might be able to use is if the relocation is considered temporary - less than 2 years. She can apply for special permission to be out of the US for those two years. This should be applied for prior to leaving the country, however, so USCIS may not allow it. It is also no guarantee that USCIS will agree that she has not abandoned her status, but if you have maintained all of your residency ties in the US - house, bank accounts, DL, vehicle licenses - and the job in Canada is a contractual one for a specified period of time for less than 2 hears - you might be successful.

The Canadian Immigration lawyer may know Canadian immigration law but does not know US Immigration law. There is no way to put her visa status 'on hold'. When her two year card expires, her status expires. It cannot be extended. In order to remain a Permanent Resident, she must apply to remove her 'conditional status' by submitting the I-751 form supported by the documents that prove you two have a valid marriage. It may be a moot point, however, because if you are not residing in the US, she may be considered to have abandoned her permanent resident status in the US.

If you intend to be in Canada for a while, it is probably easier for you not to file to remove conditions as it would probably be a waste of money. When you decide you wish to return to the US - if ever - then you can apply for another IR-1 visa which should pose no difficulties for either of you.

[Krikit 1,165]

The lawyer you were speaking with may be referring to the Returning Resident Visa. Here are some links for you to get you started:

https://help.cbp.gov/app/answers/detail/a_id/820/kw/reentry/sno/1

https://help.cbp.gov/app/answers/detail/a_id/1191/kw/reentry/related/1/sno/1

http://travel.state.gov/visa/immigrants/info/info_1333.html

[Sufrank 4]

Well, our work visas here are for three years and we plan to be here at least that long. We're also selling our house in the U.S., and it's going to close in a week. So - yes, I guess we've essentially relinquished her residency. Kinda of frustrating considering how much trouble we went through to get it all, but that's life - and we followed the job that's providing for our family :|

I'll share this with her and see what she says.

Thanks for the help.

[Kathryn41 3,205]

Good luck and enjoy your new life in Canada. It is a great country in which to live and work. If and when you decide you want to return to the US, you can re-petition her.