Green Card and Surrender or Travel Document.

[KP & SP 9]

Dear Friends,

I am a US Citizen and I petitioned my father (retired) for Green card, it was approved and it's been three years.

My father initially thought he could come to USA and work so he can stay active. But the situation are not favorable, he has other obligations back home such as taking care of my grandfather and the properties he owns outside of USA; my father is also a diabetic patient and I don't feel comfortable sending him to work. (I know we can argue about his health and work but that is not the point).

His back and forth travel:

1st Year. First year since he had his GC; he stayed in USA for 7 months and spent the rest of the months back home.

2nd Year. He was outside of USA for 10 months.

3rd Year. He was outside of USA for 10 months.

On his 3rd. year Immigration Officer at port of entry was not pleased about his overstay in a different country for 10 months. Now we are facing a dilemma and don't know what we should do and would like to seek your advice. These are the options we have in hand unless you find other.

I. Surrender the GC at the Embassy back home.

II. File for Advance Parole and continue to hold onto the GC.

Now, if he surrenders his GC would he have any issues to gain a tourist visa or another petition for GC later down the road ? He received a tourist visa once before his GC approval. If he files for the advance parole i.e. travel document; would his previous overstay in a different country be a problem and will be denied? Also, for the advance parole does he have to be in USA until it is approved or denied?

Would like to get your opinion about this.

Thanks,

[KP & SP 9]

Dear Friends,

I am a US Citizen and I petitioned my father (retired) for Green card, it was approved and it's been three years.

My father initially thought he could come to USA and work so he can stay active. But the situation are not favorable, he has other obligations back home such as taking care of my grandfather and the properties he owns outside of USA; my father is also a diabetic patient and I don't feel comfortable sending him to work. (I know we can argue about his health and work but that is not the point).

His back and forth travel:

1st Year. First year since he had his GC; he stayed in USA for 7 months and spent the rest of the months back home.

2nd Year. He was outside of USA for 10 months.

3rd Year. He was outside of USA for 10 months.

On his 3rd. year Immigration Officer at port of entry was not pleased about his overstay in a different country for 10 months. Now we are facing a dilemma and don't know what we should do and would like to seek your advice. These are the options we have in hand unless you find other.

I. Surrender the GC at the Embassy back home.

II. File for Advance Parole and continue to hold onto the GC.

Now, if he surrenders his GC would he have any issues to gain a tourist visa or another petition for GC later down the road ? He received a tourist visa once before his GC approval. If he files for the advance parole i.e. travel document; would his previous overstay in a different country be a problem and will be denied? Also, for the advance parole does he have to be in USA until it is approved or denied?

Would like to get your opinion about this.

Thanks,

39 Views and no response. Must be a complicated situation.

[Brother Hesekiel 2,236]

First, the lecture: a lawful permanent resident of the United States is required by law to reside permanently in the United States. If you think about this, you'll agree that your dad hasn't been doing this at all since he was granted LPR status. So it's understandable that CBP tells him to change that right now and reside in the U.S. or lose his Green Card.

If your dad has no intention to permanently reside in the United States, he may as well surrender his GC via form I-407 and at the same time apply for a B2. This is strategically important as he basically says to the consulate "listen, guys, I've been granted the privilege to reside in the United States permanently, but due to other obligations I feel that I cannot reside there permanently, nor do I want to. So I'd like to "exchange" my Green Card for a visitor's visa, so that I can visit my daughter once a year."

Under most circumstances, that should guarantee him a B2 under circumstances that have no guarantee. (Let this soak in!)

Surrendering his GC has no adverse effect in regard to a later I-130 petition, but his age medical condition may very well prevent him from becoming a resident again. The consulate is required to make sure that no intending immigrant becomes a financial burden on the American people, and an older person with health issues will unlikely be able to work at the very least 10 years full time which is the minimum requirement to receive Medicare and retirement benefits. Hence, the sponsor would have to show that he or she is able to compensate for this, and that's a biggie.

Here' s the law:

Age and Health of Prospective Immigrant

Both USCIS and Department of State are required to consider the immigrant's age, health, and ability to support themselves when making the public charge determination. This requirement is based on INA section 212(a)(4)(B):

Factors to be taken into account.- (i) In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's-

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills

Only after considering these things, will DHS or DoS consider the affidavit of support:

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 213A for purposes of exclusion under this paragraph.

Both the Adjudicators Field Manual (DHS) and Foreign Affairs Manual (DoS) refer to the "totality of circumstances", and specifically refer to INA 212(a)(4)(B). Some specific references in the Foreign Affairs Manual:

9 FAM 40.41 N4.3 Family Status

You should consider the marital status of the applicant and, if married, the number of dependents for whom he or she would have financial responsibility.

9 FAM 40.41 N4.4 Applicant's Age

You should consider the age of the applicant. If the applicant is under the age of 16, he or she will need the support of a sponsor. If the applicant is 16 years of age or older, you should consider what skills the applicant has to make him or her employable in the United States.

9 FAM 40.41 N4.5 Education and Work Experience

You should review the applicant's education and work experience to determine if these are compatible with the duties of the applicant's job offer (if any). You should consider the applicant's skills, length of employment, and frequency of job changes. Even if a job offer is not required, you should assess the likelihood of the alien's ability to become or remain self-sufficient, if necessary, within a reasonable time after entry into the United States. (See 9 FAM 40.41 N4.7.)

9 FAM 40.41 N4.6-1 Aliens Subject to INA 212(a)(4)©/(D)

An alien who must have Form I-864, Affidavit of Support Under Section 213(A) of the Act, will generally not need to have extensive personal resources available unless considerations of health, age, skills, etc., suggest that the likelihood of his or her ever becoming self-supporting is marginal at best. In such cases, of course, the degree of support that the applicant will be able and likely to provide becomes more important than in the average case.

Edited March 16, 2013 by Brother Hesekiel