I-751: To file or not to file, and the ramifications thereof

[davidb79 2]

Hi all. My wife (a German citizen) and I are approaching our deadline to apply for removal of conditions and we are in need of some advice. In November of 2011, we got married in the US and applied for an Adjustment of Status, which was approved in March of 2012. Since then, we have struggled to get our lives on the same page. We have been married for 26 months and have spent 14 of those months with her back in Germany and me in America. This has nothing to do with our love for each other and everything to do with finances and logistics. If details are necessary to assist us in our decision-making process, I'll be happy to elaborate, but for now I will spare the nitty gritty.

The main thing you need to know is that my wife is currently in Germany and has been there since last September. In fact, she has been in Germany for 12 of the past 16 months. Her preference at this stage is to have me join her in Europe so that she can work on her master's degree (cheaper for her to do there than here, as far as we can tell). If we do that, a green card is wholly unneeded right now, but we do intend to reside in the US eventually, so we would prefer to get conditions removed.

As I mentioned, however, finances have been an issue for us. We can swallow the $600 filing fee, but that $600 triples or even quadruples when you factor in her having to fly back to America on short notice for a biometrics appointment and/or interview. Even that we can accept, but it is more than a question of finances. Considering the amount of time she has been out of the country, I am concerned about the odds of her getting approved if we do file. I would hate to spend that much money only to see her get rejected due to the circumstances of our relationship over the past 2 years. And let's say she does get approved: is she in danger of losing her status if she spends another year or two out of the country pursuing a master's degree?

Knowing what we know now, if we had it to do over again, we almost surely would not have applied for the AOS when we did. That being the case, perhaps the smart move is to let her status expire and try again when our situation is more settled. Then my question becomes, how much harder will it be to try again? We would go the IR-1/CR-1 route, but would our earlier situation affect our chances with that? If we do decide to forgo removal of conditions now, is there some procedure we ought to follow to let USCIS know that we aren't just irresponsibly letting her status expire without a thought? And, on a less important but still significant note, would she have problems getting into the US just for visits?

I'm curious what all of you would do if you were in our shoes. I deeply appreciate any advice you are willing to share. If you need any clarification about our situation, please ask. Thank you!

[van1234essa 11]

Hi all. My wife (a German citizen) and I are approaching our deadline to apply for removal of conditions and we are in need of some advice. In November of 2011, we got married in the US and applied for an Adjustment of Status, which was approved in March of 2012. Since then, we have struggled to get our lives on the same page. We have been married for 26 months and have spent 14 of those months with her back in Germany and me in America. This has nothing to do with our love for each other and everything to do with finances and logistics. If details are necessary to assist us in our decision-making process, I'll be happy to elaborate, but for now I will spare the nitty gritty.

The main thing you need to know is that my wife is currently in Germany and has been there since last September. In fact, she has been in Germany for 12 of the past 16 months. Her preference at this stage is to have me join her in Europe so that she can work on her master's degree (cheaper for her to do there than here, as far as we can tell). If we do that, a green card is wholly unneeded right now, but we do intend to reside in the US eventually, so we would prefer to get conditions removed.

As I mentioned, however, finances have been an issue for us. We can swallow the $600 filing fee, but that $600 triples or even quadruples when you factor in her having to fly back to America on short notice for a biometrics appointment and/or interview. Even that we can accept, but it is more than a question of finances. Considering the amount of time she has been out of the country, I am concerned about the odds of her getting approved if we do file. I would hate to spend that much money only to see her get rejected due to the circumstances of our relationship over the past 2 years. And let's say she does get approved: is she in danger of losing her status if she spends another year or two out of the country pursuing a master's degree?

Knowing what we know now, if we had it to do over again, we almost surely would not have applied for the AOS when we did. That being the case, perhaps the smart move is to let her status expire and try again when our situation is more settled. Then my question becomes, how much harder will it be to try again? We would go the IR-1/CR-1 route, but would our earlier situation affect our chances with that? If we do decide to forgo removal of conditions now, is there some procedure we ought to follow to let USCIS know that we aren't just irresponsibly letting her status expire without a thought? And, on a less important but still significant note, would she have problems getting into the US just for visits?

I'm curious what all of you would do if you were in our shoes. I deeply appreciate any advice you are willing to share. If you need any clarification about our situation, please ask. Thank you!

That's a tricky situation. I would find out if your wife even is able to file ROC. Since she's practically living in Germany her green card might be considered as abandoned. That's what I would find out first.

http://www.uscis.gov/green-card/after-green-card-granted/maintaining-permanent-residence

It looks like she failed to maintain her permanent residence according to uscis requirements.

Good luck tho!

[davidb79 2]

Thanks for your response, Vanessa! I'm not sure if that 1 year is consecutive or cumulative, but she has never been outside the states for more than 5 months at a time. Though she has been out of the country for quite a long time, we can honestly say that she hasn't intended to live in Germany permanently. She has gone back to take care of various obligations, and the time has stretched on longer than we wanted it to. We have continued to file joint tax returns the past 2 years. So, depending on how one interprets those requirements, I think it could go either way.

[VickyP 34]

Did she apply for a re entry permit for staying out of the us for longer than a year?

[davidb79 2]

Did she apply for a re entry permit for staying out of the us for longer than a year?

Vicky,

No, she did not. We did not intend for it to go on this long so we never thought to file for a re-entry permit. We would do that if we decide to live in Europe for her master's degree, assuming ROC is approved in the first place.

[VickyP 34]

I really don't want to give you an wrong info. I think vanessa is right with what she said but I am not 100% sure!

[davidb79 2]

If we assume for a moment that my wife would indeed be considered to have abandoned her green card, what would be the appropriate next step? Is there anything we ought to do with USCIS in the way of notifying them as to what has transpired, or do we just let her status expire and try again once we are ready to live in the US together? Do any forum members have experience with applying for a green card after having let the first one expire? If I could be certain that there won't be any large roadblocks in the future, I probably feel the most peace (if it is possible to feel any peace about this situation) in letting her status expire for now. I am still free to move to Europe to be with her, and we could try for another green card down the road when we get to that point. But I don't want her to be black listed or anything like that. Is that a concern?

[VickyP 34]

I would recommend to let them know. She can also send it directly to Frankfurt!

When you are about to go back to the US, you would have to file for the CR1.

[davidb79 2]

I did some research last night and found out about the I-407, which I guess is what you are referring to, Vicky. In light of that, I am fairly clear on the process of abandoning her green card and feel comfortable that we would be able to successfully complete the process again when that time comes. Yes, it may require a lot more time apart, but that is something we have learned to live with over the course of our relationship. Looking only forward with no regrets about the past, this seems like a doable option.

I guess the biggest remaining question is what would happen if we went forward with filing the I-751. In the research I've been doing, I am still not clear as to whether the government will view her to have abandoned resident status. It really seems like a tossup. I am going to give USCIS a call today to see if I can get to the bottom of it, but here is a breakdown of the time she has been here/gone since we got married. Maybe that will make the picture more clear:

America 155 days

Germany 43 days

America 119 days

Germany 149 days

America 23 days

Germany 107 days

America 79 days

Germany 131 days and counting

As you can see, she has never been out of the country for more than 180 days straight, but the numbers have become pretty lopsided recently, especially in 2013 when she was in the US for just 102 days total. If questioned on the matter, though, I do think we could make a decent case as to why this has been so. She still has many of her belongings at my house in Ohio, and I have filed and will continue to file her tax return. She did an internship in Ohio over the summer. I think there are plenty of things to illustrate that we've been doing our best to make this work, but will the government see it that way? That is what I need to answer before we spend $600 and book a flight.

[victorian221b 12]

It is very difficult to see what USCIS thinks and looking at the link attached to this post, there is no clear way to tell what constitutes to abandonment. Maybe you can make an appointment with your local field office and find out since you are in a special situation.

I've never been in this situation before and I probably won't add much to what's already been posted, but maybe the following ideas may give you other things to think about. Let's assume that USCIS does not see her current situation as potential for abandonment and has no issues with the time she was in the US.

1) Give up her GC and re-apply when the time comes. I do not know how valid this is and whether there will be a "blacklist" (I think that's more for people who the USCIS thinks have severely abused their rights as a PR). I think if you can prove, for financial reasons etc., that you are moving permanently (say, more than 2 years) to another country I think that's a valid reason and she may not have a problem re-applying for a GC. But by that time, you'd have been married for more than 2 years and there shouldn't be any more Conditional GC stuff you have to deal with.

2) Apply for ROC but make sure she applies for re-entry permit, etc. This is pretty straightforward.

3) Apply for ROC, get her extension letter and when her 3 years residence status is up, apply for citizenship. Now this may be a tricky one, not sure where she needs to be physically in order to make this happen. The reason I brought this up is it will help eliminate all this GC problem going forward once she gets her citizenship and you're planning on coming back to the States anyways at some point.

Hope this helps, good luck!

[Cathi 5,794]

After spending more than 6 months in a calendar year she abandoned her green card, if she wants to come back you will have to petition an I 130 for an ir1 visa on her behalf

[davidb79 2]

Thanks for the confirmation, mimolicious. Not fun to hear, but we need to know the truth of the situation.

And thanks for the ideas, Victorian. I especially appreciate you pointing out that conditions would not apply to any GC in the future since we have been married more than two years. Though giving up a current GC is not ideal, it seems like going through the process again will be more straight-forward than it has been to this point, especially when we are ready to make this a permanent move. In my research so far, I haven't come across anything about getting blacklisted. In fact, my reading about the I-407 seems to indicate that, while the abandonment process is irrevocable, there is no issue with applying again. We'll just have to start over from scratch, which is not a surprise to us.

[bob.sansmal 14]

just wondering, if the reason for her being in Germany is to work on her Master's at a university there (where it's cheaper) could she arrange to do her course work/thesis work remotely on-line?

[Dave&Roza 748]

College is one of those temporary things that you can do and still remain a LPR. I guess the question becomes if she files for ROC can she jump thru all the hoop required in order to maintain her LPR status as a GC holder or would it be better to return the GC and wait until her situation is more stable and she is living in the US? Given the amount of time she has been outside the US, there is no possibility to file for USC because she does not meet the physical presence rules. As long as she can show she has maintained her residency and has no trip outside the US for more than 365 consecutive days, she is still a LPR and can file for ROC. Then it boils down to proving this unique situation is a bona fide marriage. There will be the cost associated with doing the biometrics, but there may or may not be an interview.

You will have to prove that college is temporary. You will have to show that she has maintained resident ties to the US. You will have to show that the two of you are still considering yourselves a couple. She will have to continue this until she returns to the US to live with you. Worry about keeping her LPR status and do not worry about USC for now. IMHO, I think it is doable, but it will be more difficult than most ROC cases. Yes, she has physically remained in Germany more than the US, but it does sound like she considers your home in the US as her place of domicile which is very important.

Good luck,

Dave

[Hypnos 6,578]

After spending more than 6 months in a calendar year she abandoned her green card, if she wants to come back you will have to petition an I 130 for an ir1 visa on her behalf

This is not the case. After spending a year outside the US, there is a presumption that the alien has abandoned their green card if they did not obtain a re-entry permit before leaving, but not six months.

OP, you're in a sticky situation. If it were me, instead of throwing good money after bad I would just have your wife finish her Master's in Germany as she wants to do, then re-petition her ~six months before you both intend to return to the US permanently. There are a couple of good points about this:

(i) if you are residing in Germany with her then, provided you have been there for at least six months you should be able to file for her immigrant visa through DCF, meaning you'd have the visa in your hands perhaps just a few months from submitting the I-130. The Germany US embassy page regarding this is here: http://germany.usembassy.gov/visa/uscis/i130/

(ii) if, on the day your wife enters the US on this new immigrant visa, you have been married for at least two years then she would not need to file for RoC, but would instead receive a full ten year green card.

If you do choose to go down this path, formally abandoning her existing green card at the embassy in Frankfurt is the cleanest option. You would need to file an I-407, and it's a very simple matter to do so. If you do this, ensure you make a copy of the green card first for your records.

Edited January 15, 2014 by Hypnos