Losing Residency and Applying for Tourist Visa (CR2 to B1/B2)

[CasiCassie 0]

My family has a super complicated situation with our daughter. Details below if they help. Thanks in advance for sharing any wisdom you have about the intricacies of the visa/immigration world!

 

My question: Is it possible for a child with an expired 2-year green card to receive and travel with a tourist visa?

 

Potentially Helpful Details:

((My husband and Stepdaughter came on joint CR1 and CR2 Residency, respectively. My daughter's ROC process (from CR1 to IR2 for the 10-year green card) has been interruped by her mother (her card expiring in Nov 2018) and last we had heard, my stepdaughter was back in the Dom Rep with her mother. But we suspect that my stepdaughter was recently taken to Puerto Rico. Her mother, who travels regularly on what we believe has a B1/B2 visa plans to live in Puerto Rico. My stepdaughter was included on the I-751 ROC application but has not yet had her biometrics appointment here. We are working with lawyers and other necessary government officials but they never seem to have all of the answers we need with details like this.))

Edited October 22, 2019 by CasiCassie
Missing a piece of information

[designguy 1,179]

Its unclear from your post if your intention is for the child to come and visit you or if you intend for her to come back and resume residency.

 

As far as I know it would not be possible for a resident to enter the US on a tourist visa. Either the resident must get a boarding foil (if they are eligible to receive one) that will allow them to travel back to the US OR they must file an I-407 to Abandon the GC and then apply for a visa

 

 

[Unlockable 7,314]

If the mother has custody of your step-daughter and is having her live with her in another country than her residency.

 

It is possible for your step-daughter to receive a tourist visa in the future after losing residency. However, the probability of it is where things get blurry. If there are any custody issues or any hint of your step-daughter abusing her visitor visa, it is a high chance of her being denied. Dominicans already have a high rate of denials for B2 visas. Add in what's going on with your step-daughter and her mother and it will make the odds even higher. But she is free to try for it.

[CasiCassie 0]

11 hours ago, designguy said:

Its unclear from your post if your intention is for the child to come and visit you or if you intend for her to come back and resume residency.

 

As far as I know it would not be possible for a resident to enter the US on a tourist visa. Either the resident must get a boarding foil (if they are eligible to receive one) that will allow them to travel back to the US OR they must file an I-407 to Abandon the GC and then apply for a visa

 

 

Interesting. I hadn’t heard about the I-407 That needed to be filed for abandon or the boarding foil. I’ll look into what those entail.

We would love for our daughter to return to live with us, or at least in the future have the possibility of her coming to visit. In this specific case, though, my question is regarding the possibility of the mother stacking visas like this now that things aren’t working as she had planned.

We have been told by USCIS local officers that my stepdaughter could technically still enter the US with her expired green card and continue her CR2 to IR2 Residency ROC Process for her expired CR2 only *IF*.....

1.) She enters with her father (the original petitioner and CR1 holder) and

2.) Her father and she can present the single 18-month extension letter we received for their case.
 

We are very aware that the DR is known for its visa fraud and corruption, which unfortunately has created an very difficult bar to keep Dominicans from coming in, but also to keep them coming back when legally they were never supposed to leave. 

[designguy 1,179]

3 minutes ago, CasiCassie said:

Interesting. I hadn’t heard about the I-407 That needed to be filed for abandon or the boarding foil. I’ll look into what those entail.

We would love for our daughter to return to live with us, or at least in the future have the possibility of her coming to visit. In this specific case, though, my question is regarding the possibility of the mother stacking visas like this now that things aren’t working as she had planned.

We have been told by USCIS local officers that my stepdaughter could technically still enter the US with her expired green card and continue her CR2 to IR2 Residency ROC Process for her expired CR2 only *IF*.....

1.) She enters with her father (the original petitioner and CR1 holder) and

2.) Her father and she can present the single 18-month extension letter we received for their case.
 

We are very aware that the DR is known for its visa fraud and corruption, which unfortunately has created an very difficult bar to keep Dominicans from coming in, but also to keep them coming back when legally they were never supposed to leave. 

Well the first step is to be able to even get her on a plane to the US. Does the father have custody or has the mother agreed to have the child go to the US? How do you plan on getting her on a plane with an expired green card? She must have a valid travel document to board the plane. For an LPR this means either their valid green card or a boarding foil in the case of a lost or expired GC

[Villanelle 4,122]

15 hours ago, CasiCassie said:

My family has a super complicated situation with our daughter. Details below if they help. Thanks in advance for sharing any wisdom you have about the intricacies of the visa/immigration world!

 

My question: Is it possible for a child with an expired 2-year green card to receive and travel with a tourist visa?

 

Potentially Helpful Details:

((My husband and Stepdaughter came on joint CR1 and CR2 Residency, respectively. My daughter's ROC process (from CR1 to IR2 for the 10-year green card) has been interruped by her mother (her card expiring in Nov 2018) and last we had heard, my stepdaughter was back in the Dom Rep with her mother. But we suspect that my stepdaughter was recently taken to Puerto Rico. Her mother, who travels regularly on what we believe has a B1/B2 visa plans to live in Puerto Rico. My stepdaughter was included on the I-751 ROC application but has not yet had her biometrics appointment here. We are working with lawyers and other necessary government officials but they never seem to have all of the answers we need with details like this.))

It is not possible for someone with ROC pending to get a tourist visa. Mainly because if ROC is pending you are an LPR so you cant get nor do you need a tourist visa. For 751 cases: if you fail to file (eventually) USCIS will assume you no longer want the GC and will send your file to court where the status will be closed out. This does not happen the day after you were suppose to file. It can take months-year for USCIS to act on ones failing to file. This does not apply here as you guys DID file. 

 

So, having filed the 751 the immigrant is still a LPR and would use the NOA+expired GC as proof of status. How old is the child? Under 14? If so the parent can sign an i407 to surrender the card. If over 14 the child needs to sign themselves to surrender it. The card would have to be surrendered to even be able to qualify for a tourist visa. 

 

Moving on since this is complicated! If the child gets a biometrics appt and does not attend the 751 will be denied by USCIS. This does NOT mean the child no longer has a status. USCIS can not strip someone status. Only a Judge can do such. So if they miss the bio appt USCIS will deny the case and the file will (eventually) be sent to a Judge to formally remove the status. But you can refile another 751! You can file it as many times as you want technically. So if a bio notice comes and you miss the appt and the case is closed by USCIS but you do not want the child to lose status- file another 751 promptly. 

 

If a 407 is filed by the parent or child then its over. The status is gone and would have to be reapplied for from scratch. If you could provide more details you can get better advice, specifically how old the child is and what is the current custody arrangement. Was the child taken with out permission?

 

Im also going to ask your topic be moved to a more appropriate forum where you will get better responses.

[Ontarkie 14,175]

~~Moved to Effects of Major Family Changes, from Tourist Visas - As the OP's step daughter has ROC in progress.~~

[Cayacoa 10]

IANAL (Im not a lawyer).

This is what the law is regarding this subject:

 

Quote

Under the Matter of Zamora, 17 I&N Dec. 395 (BIA 1980) [PDF version], if an LPR parent is found to have abandoned his or her status while abroad with his or her LPR child (defined as being under the age of 18), the abandonment of LPR status shall apply to the child. Also see the Matter of Winkens, 15 I&N Dec. 451 (BIA 1975) [PDF version], wherein a 14-year old child was found to have lost his LPR status when he left the United States in the custody of his parents who abandoned their residence in the United States. More broadly, the Board held that the abandonment of an LPR parent's status is imputed to LPR minor children under his or her custody and control. In the Matter of Huang, 19 I&N Dec. 749, the Board held that “the excludability of the [LPR] children is dependent on the excludability of the [LPR parent].”

 

In Khoshfham v. Holder, 655 F.3d 1147 (9th Cir. 2011) [PDF version], the Ninth Circuit held that in order for an LPR's abandonment to apply to his or her LPR child, it must be found that the abandonment occurred before the child turned 18. If the child is still an LPR when he or she turns 18, his or her intent will control rather than the intent of his or her parent(s).

Source: 

http://myattorneyusa.com/case-law-on-the-abandonment-of-permanent-resident-status

I have a friend who is in this situation but it was his mother who took him back to DR. It was never his intention to leave. In this case your step-daughter's mother is not the LPR but the dad. The best thing that you can do is check what are your possibilities to get the SB-1 visa for Returning Residents. For what I've read in Avvo.com(a page were immigration lawyers give you free advice) regarding the SB-1 it is really difficult to get the SB-1 but this is different. IMO (In my opinion) you should hire a lawyer and claim that this is kidnapping because she took the daughter to live somewhere else without his knowledge. 

Plan B (but risky) (not sure where I read this) was to take a flight back to the US. (Allegedly) the CBP officer will let you go and set you up for an appointment with an immigration judge who will decide what to do with her; there you can bring your lawyers and argue the case. Anyways consult with your lawyers to see if this is feasible.