ROC question

[heldenhafte 56]

Hey there,

 

I entered the US on a K1 visa. We got married and I got my conditional greendcard, which is soon to expire.

Now we would have to apply for ROC, but the thing is, that I will be mainly in my home country the next two or maybe even three years, and were going back to long distance for this time, before I want to move back to the US.

 

Now... what can we do? What are our options?

 

Any feedback much appreciated...

[Mike E 11,742]

32 minutes ago, heldenhafte said:

Hey there,

 

I entered the US on a K1 visa. We got married and I got my conditional greendcard, which is soon to expire.

Now we would have to apply for ROC, but the thing is, that I will be mainly in my home country the next two or maybe even three years, and were going back to long distance for this time, before I want to move back to the US.

 

Now... what can we do? What are our options?

 

Any feedback much appreciated...

The prime directive here is that you need to file I-751 before your green card expires.  Otherwise this is a moot question.  
 

The second part of your question is how do you ensure you preserve your residency status if you move outside the USA. The answer is that you file I-131 to get a re-entry permit.  You need to take biometrics (or get confirmation of waiver) before you leave the USA.  
 

If you leave without getting biometrics then you are gambling that when you return to the USA after 1-2 years abroad that you won’t be processing as an arriving alien and given a Notice to Appear. It seems this doesn’t normally  happen and some people get away with it.  
 

While abroad maintain your USA residence, state ID, file tax returns on time, etc.  

[heldenhafte 56]

So, we would not be able to apply for a new green card in 2-3 years?

[Mike E 11,742]

14 minutes ago, heldenhafte said:

So, we would not be able to apply for a new green card in 2-3 years?

That is 100 percent the opposite of what I wrote.  
 

The prime directive here is that you need to file I-751 before your green card expires.  Otherwise this is a moot question

 

If you wait 2-3 years to file then expect your I-751 to be denied as “I left the USA for 3 years” isn’t likely to be an acceptable reason for filing late.  You won’t be able to board a flight to the USA.  And even if you manage to get to a port of entry, there is a chance your removal proceedings trial happened in absentia  and you will be denied entry.  

 

 

Edited January 13, 2022 by Mike E

[arken 4,197]

1 hour ago, heldenhafte said:

Now we would have to apply for ROC, but the thing is, that I will be mainly in my home country the next two or maybe even three years, and were going back to long distance for this time, before I want to move back to the US.

 

45 minutes ago, heldenhafte said:

So, we would not be able to apply for a new green card in 2-3 years?

The main reason of issuing 2 year GC and then asking for i751 is they want to see you two are living together in a bonafide marital life. Just having married doesn't satisfy that. If you can't do that, then they are not gonna approve you the 10 year GC even if you filed now, forget it if you file after 2-3 years.

[Dashinka 24,717]

54 minutes ago, heldenhafte said:

So, we would not be able to apply for a new green card in 2-3 years?

If you plan to be outside of the US for 2-3 or more years, you can formally give up your current GC (I 407), then about 1.5-2 years before you plan to return, your USC spouse can file a new I 130 for a new spousal visa/GC.  Of course with this you would be married more than 2 years so you would get a 10 yr GC.  I think you can still use VWP to come back for visits.

Edited January 13, 2022 by Dashinka

[heldenhafte 56]

Okay tut makes sense. And is probably the best way for us.

[Mike E 11,742]

43 minutes ago, arken said:

 

The main reason of issuing 2 year GC and then asking for i751 is they want to see you two are living together in a bonafide marital life. Just having married doesn't satisfy that. If you can't do that, then they are not gonna approve you the 10 year GC even if you filed now, forget it if you file after 2-3 years.

 

39 minutes ago, Dashinka said:

If you plan to be outside of the US for 2-3 or more years, you can formally give up your current GC (I 407), then about 1.5-2 years before you plan to return, your USC spouse can file a new I 130 for a new spousal visa/GC.  Of course with this you would be married more than 2 years so you would get a 10 yr GC.  I think you can still use VWP to come back for visits.

If 10 year GC from RoC isn’t going to be approved because they don’t live together then not sure why a 10 year GC from a new I-130 / DS-260 would be approved.

[Dashinka 24,717]

18 minutes ago, Mike E said:

 

If 10 year GC from RoC isn’t going to be approved because they don’t live together then not sure why a 10 year GC from a new I-130 / DS-260 would be approved.

If the OP gives up their conditional GC using the I 407, they will not need to file the ROC.  I would see it as more of a person following the rules since they plan to be out of the US for more than 2 years (a re-entry permit would not work), this would be the best path.  If they can keep their marriage together over that time long distance with some visits, I don't see a big issue with a subsequent visa application.

[Marieke H 2,523]

4 hours ago, Mike E said:

 

If 10 year GC from RoC isn’t going to be approved because they don’t live together then not sure why a 10 year GC from a new I-130 / DS-260 would be approved.

It would be a completely new IR-1 application, not related to the current conditional greencard. Lots of couples file I-130s without having lived together; the purpose of the I-130 is to bring the spouse over to the US to be able to live together. And if the process takes long, as it does for many couples at the moment, they may end up receiving a 10 year greencard if they enter after being married for at least 2 years. All this can happen without having lived together; living together is not a requirement for a spousal visa, while it is for AOS/ROC.