Mother of American Children with expired immigration

[snowcrash 1]

aaron, I suppose that path is possible, but the 'over a year' could be interpreted as 'three years' as well.

What does that mean?

[snowcrash 1]

Your friend's best chance of living in the US with her children is to try to return with the current green card. The card is still good until an immigration judge decides otherwise. There is no such thing as automatic loss of LPR status.

If she has problems entering after being out more than a year, CBP will still let her in and refer her to an Immigration judge. There she can fight to keep her LPR status.

If she is allowed in with no problem, then her problem goes away. She goes back to living with her children.

In many of the third world countries, US has pushed the burden of immigration enforcement on the departure country's authorities. So everyone from the airlines to the local airport officials check the validity of one's US documents before letting them embark for the US. So the likelihood of her getting on a plane to the US is pretty slim without a current GC. But what you are saying is that if she did somehow manage to get on a flight, the immigration desk at say JFK New York will NOT put her on a flight back to BD? Instead they will put her in front of a judge? or let her in with a scheduled hearing with an Immigration judge?

Edited July 10, 2013 by snowcrash

[aaron2020 11,651]

she needs to go to the Embassy and see what they say first. I am sure there is a way she can reactivate her green card. She should try this route first.

I would not go to the US Embassy to ask. The US Embassy could determine she abandoned her status and put a note in her file. She would have no meaningful way to fight for her LPR status in Bangladesh.

If she shows up at a POE, she will get her day in court if necessary.

I would buy a ticket, show up at the POE, and take my chances in the US.

[aaron2020 11,651]

In many of the third world countries, US has pushed the burden of immigration enforcement on the departure country's authorities. So everyone from the airlines to the local airport officials check the validity of one's US documents before letting them embark for the US. So the likelihood of her getting on a plane to the US is pretty slim without a current GC. But what you are saying is that if she did somehow manage to get on a flight, the immigration desk at say JFK New York will NOT put her on a flight back to BD? Instead they will put her in front of a judge? or let her in with a scheduled hearing with an Immigration judge?

Is her green card expired? Is it a regular 10 years card or a conditional card?

So, she is not legally divorced correct? The husband is a US citizen living in the US, so saying "I divorce you" three times is meaningless. A US citizen living in the US cannot divorce this way.

Edited July 10, 2013 by aaron2020

[snowcrash 1]

Is her green card expired? Is it a regular 10 years card or a conditional card?

So, she is not legally divorced correct?

Green Card is NOT expired. She has just over stayed. She has been out of US now for 18 months.

She is NOT legally divorced.

Yes you are right the saying-three-times rule is meaningless in the US without proper filing of papers.

Edited July 10, 2013 by snowcrash

[aaron2020 11,651]

Green Card is NOT expired. She has just over stayed. She has been out of US now for 18 months.

She is NOT legally divorced.

Then, tell he to get on a plane to the US as soon as possible and let the immigration court deal with it.

With an unexpired green card, there is no way for the airline to determine if she has abandoned it or not. The airline will let her fly on the unexpired green card.

If CBP gives her no trouble, then she enters without any problems.

If CBP thinks she has abandoned her status, then she would be paroled into the US and she would be referred to an immigration judge to determine if she had in fact band ones her status. Only the judge can end her LPR status. With a US husband and minor children , it's unlikely that she would lose her status IMHO.

[snowcrash 1]

Then, tell he to get on a plane to the US as soon as possible and let the immigration court deal with it.

With an unexpired green card, there is no way for the airline to determine if she has abandoned it or not. The airline will let her fly on the unexpired green card.

If CBP gives her no trouble, then she enters without any problems.

If CBP thinks she has abandoned her status, then she would be paroled into the US and she would be referred to an immigration judge to determine if she had in fact band ones her status. Only the judge can end her LPR status. With a US husband and minor children , it's unlikely that she would lose her status IMHO.

Thanks much for your input, it is a great help.

I am not sure about it so I will ask her this next time I call her, what if she has contacted her local embassy for re-entry and they have flagged her GC as you mentioned earlier? How will that play out at the POE?

Edited July 10, 2013 by snowcrash

[aaron2020 11,651]

Thanks much for your input, it is a great help.

I am not sure about it so I will ask her this next time I call her, what if she has contacted her local embassy for re-entry and they have flagged her GC as you mentioned earlier? How will that play out at the POE?

No idea. All depend on how she acts and which CBP officer questions her.

[Hypnos 6,578]

If she attempts a re-entry on her green card then they will see in their system that she has been gone for over a year. They would then issue her with a Notice To Appear in front of an immigration judge, and she would need to prove that she has not abandoned her residency.

Since she actually did abandon her residency then it's going to be a really uphill battle for her to hold on to that green card. A green card is for living in the US; if you aren't living in the US then you aren't entitled to a green card (short of a couple of narrow exceptions, such as temporarily working / studying abroad).

Edited July 10, 2013 by Hypnos

[snowcrash 1]

If she attempts a re-entry on her green card then they will see in their system that she has been gone for over a year. They would then issue her with a Notice To Appear in front of an immigration judge, and she would need to prove that she has not abandoned her residency.

Since she actually did abandon her residency then it's going to be a really uphill battle for her to hold on to that green card. A green card is for living in the US; if you aren't living in the US then you aren't entitled to a green card (short of a couple of narrow exceptions, such as temporarily working / studying abroad).

What form might that proof take?

You state that she actually did abandon her residency; is it because she stayed longer than a year? what other proof is there of the fact that she actually did?

Sorry, I am being nitpicky and lawerly just to understand the intricacies in rules and reasoning for such cases.

[Hypnos 6,578]

Proof that she has not abandoned her residency could entail: (i) filing US federal tax returns, (ii) maintaining a US bank account, (iii) maintaining a residence and paying a mortgage or rent on it, (iv) maintaining insurance policies (car, property, life).

Obviously this is not an authoritative list, but she would need to demonstrate that her trip abroad was temporary and she never intended to abandon her residency. If she has done any of those things I mentioned above, or taken other steps to maintain her residency in the US, then it's possible there is a chance. She would probably need a good lawyer, though, and from what you describe it doesn't sound as if she intended to return.

Edited July 10, 2013 by Hypnos

[Boiler 46,132]

What has she done to maintain residency?

[snowcrash 1]

What has she done to maintain residency?

I'll ask her if she has any of the things that Hypnos mentioned above?

[bdawn 66]

The assumption was that the divorce is not officially filed or in the process in anyway. In many of these countries due to their religious/cultural practices they consider a verbal divorce to be a divorce in the eyes of God. However, in the west (i.e., US) without legal filing and paperwork a divorce is not a divorce in the eyes of the law. SO without the legal filing and paperwork, it just looks like an extended leave or separation. In that case, can he re-petition for her? and in which way?

BTW, The country is Bangladesh.

She doesn't have to apply for anything; she already has a greencard. There is nothing on her greencard showing her PR is terminated...there's no such thing. She'll be allowed in and if they have any issue with her, she'll be referred to an immigration judge. Tell her to buy her ticket and fly to the States...she's a permanent resident until an immigration judge in the U.S tells her otherwise.

[newlyweds2010 208]

Don't you need a reentry permit if you are out for more than 12 months?