My UK son and wife

[barefoot 1]

Hi I hope someone can help me and my dilemma....I am 57 years old my only daughter lives in Florida she has had her green card for 5 years now so is applying for US citizenship (also my son who is 25 is going to marry his girlfriend and live there). Once she has that I can apply for my green card through her I believe my problem is I want to move and live out there to be with them but 10 years ago I got divorced from their mother remarried and now have an 8 year old son. The way I see it after many many hours trying to find out it seems once I get my green card I can petition for my spouse and child but it could take several years for them to be accepted plus during this period I have to live in the USA for a minimum of 6 months. This would brake my and my son's hearts not to mention my wife's is there anyway of getting them to live with me any sooner, could my daughter apply for her stepbrother be a better way? I love the States I am going to buy a nice property over there this year whatever happens but it seems so cruel that I cannot bring them with me.

Any help/advice would be greatly appreciated.

Kev

[Boiler 46,141]

Why do you want to leave them?

[apple21 953]

Your daughter can only file for you.

Once you have your GC, you can immediately file i-130 for your wife, your son automatically becomes a derivative of that i-130. Waiting time for them to immigrate is within 2-3 years.

Edited February 24, 2013 by apple21

[lynndy38 64]

Why do you want to leave them?

I think the point is he doesn't want to leave them, hence why he's here asking if there's a way he won't have to be separated for long.

If what apple21 says is correct and you and your wife think it would be the best move for your future together then at least your wife and son will be able to visit frequently(providing they have strong ties to the UK)whilst the I-130 is processed.

Sounds like you have alot of talking to do with your wife.

Hopefully some other posters will come along that could advise you some more.

Good luck

[barefoot 1]

Lynndy

Yes you have got the drift of my question it is having to live for 6 months of the year without them that is the problem even if they do visit and vice versa. It looks to me like there is no other way and that I am in the hands of the Immigration system I could have to wait 2 or even 3 years and with my boy only being 8 plus the wife works in the UK it becomes a bit of a nightmare with his schooling being taken and picked up(no bus routes)etc never mind the emotional stress. I now don't think there is anyway round this it seems a crazy way to get to live there having to split a family up for 2/3 years.

[Penguin_ie 5,997]

If you can afford to travel and not work, there isn't that much time you have to spend apart- say you spend 5 months of every year in the UK (rather than 6... just to be on the safe side), and they use the visa waiver program to visit during school holidays for a total of 5 months a year, that only leaves 2 months apart. Of course, all the travelling and likelyhood of neither of you working due to frequent absences would be difficult.

[Boiler 46,141]

You are misconstruing the requirements to maintain residency.

[barefoot 1]

Boiler

In what way?

[barefoot 1]

After more research it seems that if I buy my home over there and get my green card I can be out of the States for up to a year then I need to apply for a reentry permit if I am away over a year. I will be back in the UK during school terms and back in the States with my wife and child during the school holidays which is about 3 months a year so I will be in my USA home for 3 months of every year until my wife/child get their green card. I will only lose my green card if I stay out of the country for 2 years or it can be proven that I have abandoned my residence and am intending to live elsewhere. In my case I will have a home there and can prove that I am awaiting green cards for my family and that is why I am only spending 3 months of the year in the states. I am far from abandoning living there I am in the throes of moving my wife and 8 year old child there permanently!

If anyone sees it differently then please say/discuss.

Thanks

Kev

[Boiler 46,141]

Let us start with the basics:

Maintaining Permanent Residence

You may lose your permanent resident status (green card) if you commit an act that makes you removable from the United States under the law, as described in Section 237 or 212 of the Immigration and Nationality Act (INA) (see the “INA” link to the right). If you commit such an act, you may be brought before an immigration court to determine your right to remain a permanent resident.

Abandoning Permanent Resident Status

You may be found to have abandoned your permanent resident status if you:

Move to another country intending to live there permanently

Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year

Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year

Fail to file income tax returns while living outside of the United States for any period

Declare yourself a “nonimmigrant” on your tax returns

So what does this mean in practice.

It is pretty clear whether you are or are not at the extremes, the tricky issue arises as here when you try and play it close to the line.

If you take the view that it is risk you are happy to run, then no problem. If not then you need to discuss your particular situation with a lawyer familiar with abandonment issues, most Immigration Lawyers are not.

One way of finding out is asking how many abandonment cases they have tried.

Edited February 24, 2013 by Boiler

[barefoot 1]

Boiler

Thanks and I see where you are coming from but the main point with all this is the word "abandonment" This is where you are seen to be leaving the country as in abandoning it I am buying a house and I am petitioning so my wife and son can also move out with me, I will also be trying to find a school for him plus my other son and daughter live in the same town Clermont as I will be. If ever queried by immigration I will easily show that far from abandoning the USA I am actively trying to live their with my family and have just recently purchased a house to do so. I will be in the States at least 3 months of each year (school holidays)with my wife and son until they get their green cards. I also got this advice below which is also very relevant especially the part where immigration have to show evidence that you are abandoning the country and as I say I will have lots of evidence that is the last thing I am trying to do!

Losing Permanent Residence Because of Travel

There are many myths about how long a permanent resident (green card holder) may remain outside of the United States before losing his or her green card status. This article will address some of those myths and provide the information necessary to try and avoid getting into trouble due to staying outside of the U.S. longer than the immigration law permits.

Myth 1 - Now that I have my green card I can move back to my country.

If you remain outside of the U.S. for more than one year continuously, you may lose your green card automatically. The Immigration Service takes the position that if you stay out this long, you have abandoned your green card status.

Myth 2 - If I visit the U.S. once a year I’ll be okay.

This is wrong. The law and the Immigration Service look to your intent or the purpose of your travel, not just whether you have returned to the U.S. once in a while. In fact, even if you travel to the U.S. frequently but you are living abroad, the Immigration Service may find that you have abandoned your residence and revoke your green card. The test is whether you intended to be abroad temporarily or whether you plan to live abroad permanently, not simply the time you spend outside of the U.S.

For example, if a person stays outside of the U.S. continuously and returns every few months but has no roots in the U.S., such as a job, bank accounts, a home, yearly tax returns, etc., the Immigration Service may find abandonment. On the other hand, if a person has strong ties to the U.S. but only returns once a year because he or she is abroad taking care of an ill or elderly family member, a finding of abandonment would not be appropriate if all other aspects of the person’s life establish that he or she has no intent of abandoning his or her residence (e.g., maintains a home, pays taxes, owns a business, etc.).

In determining whether a person has abandoned his residence, the courts have generally looked at the following factors: a. Purpose of departure; b. Existence of fixed termination date for visit abroad; and c. Objective intention to return to U.S. as place of permanent employment or actual home.

How will the Immigration Service know how long I’ve been gone?

This typically occurs either at the time you return to the U.S. and come through customs or when you apply for citizenship and the Immigration Service inquires about your travels.

It is important to note that you have the right to contest the Immigration Service's allegation that you have abandoned your residence.

In order to prevail on a finding that someone has abandoned her green card status, the Immigration Service must prove by clear, unequivocal and convincing evidence that residence has been abandoned.

If it was not your intent to abandon your residence and you maintained strong ties to the U.S., do not be intimidated by the Immigration Service merely because an immigration officer makes allegations of abandonment – make them prove it!

Myth 3 - I am automatically eligible for citizenship after five years.

One last point about traveling abroad is that it may effect your eligibility for U.S. citizenship. In addition to maintaining your ties to the U.S., you must also be physically present in the U.S. for certain periods of time in order to be eligible for citizenship. Generally, you must be physically present in the U.S. for at least half of the previous five years.

For most travelers, abandonment of residence will not be an issue, but for those who stay outside the U.S. for extended periods of time, the above tips should be kept in mind.

[Boiler 46,141]

I would agree with those comments.

You seem to be bending your situation to match them.

[apple21 953]

In my opinion, if you really want your path to US immigration to be successful, you have to stay in the US and establish your life there (ex: find a job). You can visit them once in a while, or they visit you.

Once you have a stable job, your wife can quit hers, you send her money so she can be a full time mom to your kid.

It's just a matter of making adjustments and sacrifices.

Edited February 25, 2013 by apple21