IR1 family based visa would like to return to the US after 3 years(merged)

[Nicolo Vito Nesta 1]

Hi I'm Italian. My wife has dual citizenship (she American because she was born in the USA and Italian from parents). We have been married since 1995. In 2019 we applied for an IR1 visa and got it. We moved to the United States in March and lived there until October 2019. Then we returned to Italy for family matters. But at the beginning of 2020 the Covid pandemic broke out in Italy and we were stuck here. We obviously lost our job in the United States. Fortunately, the situation is different now and we would like to return to the United States. We contacted the company we worked for previously to ask for our old job back and this is possible. But I know I've lived outside the United States for over a year. What can I do now? I have read about Form I-131 and would like to know how many chances I have of having this re-entry permit. Has anyone experienced these cases? Is there anything I could do that can help me?
Regards

[Crazy Cat 41,857]

First of all, you could have returned to the US at any time.  US citizens and legal residents were never barred from returning home.  Do you have a valid Green Card?  If you have a valid Green card, then just get on a plane and come back. You will be allowed to enter the US.  I would get on that plane as soon as possible. Do not, under any circumstances, sign an I-407 to surrender your GC. 

@Mike E, your thoughts?

Edited October 12, 2022 by Crazy Cat

[da95826 387]

I assume you have an unexpired green card... If so, you are still a legal permanent resident.

 

 If you are an LPR unable to return to the United States within the travel validity period of the green card (1 year) or the validity of the Re-entry Permit (2 years), you may be eligible and can apply at the nearest U.S. Embassy or Consulate for a Returning Resident (SB-1) immigrant visa.

 

I think you have a good case for an SB1 visa.

 

You could try to come home on your green card but you may not get admitted to the USA, I think the SB1 visa is a good choice for you.

[Crazy Cat 41,857]

7 minutes ago, da95826 said:

I assume you have an unexpired green card... If so, you are still a legal permanent resident.

 

 If you are an LPR unable to return to the United States within the travel validity period of the green card (1 year) or the validity of the Re-entry Permit (2 years), you may be eligible and can apply at the nearest U.S. Embassy or Consulate for a Returning Resident (SB-1) immigrant visa.

 

I think you have a good case for an SB1 visa.

 

You could try to come home on your green card but you may not get admitted to the USA, I think the SB1 visa is a good choice for you.

Can you name a case where a legal resident was not allowed to re-enter? What happens if the SB-1 is denied?  I would not apply for an SB-1.  I would get to the US border ASAP, and then plead my case (if forced to)

Edited October 12, 2022 by Crazy Cat

[mindthegap 2,590]

You have an IR-1, which means a ten year card. 
This means you can board a plane back to the US without penalty at any time, even with an expired ten year card. This is not possible with a two year (CR-1) card.

 

Covid was very real for many countries and far more draconian than the US - I believe at some points in Italy you couldn’t leave the house without a permit - so is and remains an actual excuse that really can’t be countered or dismissed, even moreso if you were in an industry that was devastated over here too, meaning no job to come home to for several years. 

 

Don’t sweat it, just get on the plane as soon as possible  and enjoy re-establishing your life.

Don’t volunteer any information you aren’t explicitly asked, and don’t sign anything (like an I-407) when entering the country.

 

Would strongly suggest that you don’t apply for citizenship for at least three years from the point of re-entry, as that clock has been reset in your absence..you could probably try after 18 months as you would technically be eligible,  but honestly after an extended absence that may raise questions and cause scrutiny about the extended absence and cause issues, so to be safe I’d advise waiting the standard three years . 
 

26 minutes ago, da95826 said:

You could try to come home on your green card but you may not get admitted to the USA, I think the SB1 visa is a good choice for you.

This is not accurate.

The OP is permitted to board a carrier to the US and will be admitted to the country.
The absolute worst case scenario would be a visit to secondary for grilling about time out of the US and then a referral to an immigration judge at a later date…by which time they would have re-established ties and jobs lost during the pandemic, which as above remains a valid reason for an extended absence that wouldn’t normally be overlooked under normal circumstances.

They cannot refuse you entry or send you back. It doesn’t work that way. They are a LPR, and someone presenting as a LPR retains absolute rights in law. 

Edited October 12, 2022 by mindthegap

[Mike E 11,739]

35 minutes ago, Crazy Cat said:

  

@Mike E, your thoughts?

@Nicolo Vito Nesta

 

Just get on a plane and come home.  Refuse to sign I-407 if asked.  Worst case the gc is taken and an I-551 stamp and notice to appear (NTA) is given back. If an NTA hire an attorney to navigate the process while inside the USA. 
 

I-131 cannot be filed while outside the USA. 
 

I-131a is for people who have lost their green while outside the USA. 
 

SB-1 is a waste of time as the consulate  will likely say you had opportunities to come back to the USA before you reached 365 days of absence.  

[Ontarkie 14,223]

~~Moved to Working and Traveling, from ROC- as the OP is asking about returning to the US with a 10yr GC.~~

[Nicolo Vito Nesta 1]

First of all thanks all people that have spent time for my case.

Yes I have an unexpired Green Card (IR1 Visa valid to 03/17/2029 and valid SSN).

Yes, covid was a tragedy in Italy. For many months we have been allowed to leave the house only for work or to shop at the supermarket but only in our city and always one person per family. Almost a prison. I am lucky because I have two dogs and it was a good reason to leave the house a couple of times a day but always very close to my house and one at a time. It is my intention to explain this if anyone asks me why I was outside the US for 3 years.

Now the situation is different. I'm waiting for the US company I worked for in the past to formalize a job offer for me. I found a house to rent so as not to be a burden on the welfare state. In addition, my wife is a US citizen with a US passport who can enter the US at any time. So refusing me would be like dividing our family. We don't have children

But if there is only a little possibility that something go wrong I want to evaluate it in advance and solve it before leaving because I will leave my job and my home in Italy. Because when I will land in the US I will have nothing more in Italy. I would like to try to contact the US consulate in Italy and present my case. They know the Covid situation in Italy well over the last 3 years and their positive opinion would be reassuring for me.

Maybe these my doubts are excessive and baseless but they don't let me sleep at night.

Best regards

 

[OldUser 6,663]

@Nicolo Vito Nesta I would not be contacting US consulate, they cannot do anything about your LPR status other than flagging it to CBP which may trigger secondary upon entry. E.g. it's a waste of time in my opinion.

[Crazy Cat 41,857]

27 minutes ago, Nicolo Vito Nesta said:

I would like to try to contact the US consulate in Italy and present my case.

What case?  You have a valid Green Card......You can return to the US at any time.  You don't need a job offer to return.  The consulate is not CBP.  @OldUser just gave you excellent advice.  Good luck.

Edited October 12, 2022 by Crazy Cat

[mindthegap 2,590]

1 hour ago, Nicolo Vito Nesta said:

I would like to try to contact the US consulate in Italy and present my case. They know the Covid situation in Italy well over the last 3 years and their positive opinion would be reassuring for me.

 

This is a terrible idea. 

Your documentation is 100% legal and valid for boarding a flight to the US, and for entry to the US, so just do it.
You are a LPR - a permanent resident.

Anything that can happen as a result of your extended absence  - and the only thing that could happen is a suspicion of abandonment - will happen AFTER you land, and even then it is a long slow process and you remain a LPR while any such process is going on.

If - and it is an IF - you were referred to an immigration judge for suspected abandonment , which would be several years away,  you  have valid reasons for the extended absence which aren’t exactly unknown to people, and by that time you would also have firmly re-established yourself in the US. 

If you were referred to an immigration judge you also do not lose your status, or right to work or travel while that is ongoing - you REMAIN a permanent resident in the US. They do not send you back on the first plane. It does not work that way for permanent residents or citizens. People with visas, non-residents, and those on the visa waiver program can be refused entry and sent back, but you will not be. 

In my honest opinion, no good can come from contacting the consulate in this case, but a lot of bad (expense, stress and hassle) can.  A re-entry permit cannot be applied for outside the US, which means the consulate wil default to the side of extreme caution and tell you to get an SB-1 (a returning resident visa) or file an I-407 and start the whole IR1 process again. If you did neither of those you can bet you will be flagged up on entry anyway. It’s a lose/lose. 

 

You are a LPR. Just get on the plane.

Edited October 13, 2022 by mindthegap

[Lemonslice 4,841]

See here, page 2 of the guide:

 

https://www.cbp.gov/document/guides/carrier-information-guide-english

[nastra30 2,287]

Op, again, you've been given the advice you need. Don't make it anymore complicated.

Just get on the plane to the USA because you have a valid greencard.

At the airport refuse to sign I-407 if CBP tries to nudge you that way. Good luck.

[Dave Knapp 47]

I don't have a dog in this fight, but if a LPR can return to the US after an absence of 3 years like most of you are saying, why does CBP have this guidance on their website?  Is the operable word "Intend?" I wouldn't want to quit my job and put my entire future in the hands of a CBP agent at the airport. Just sayin.

 

Title

Can a U.S. lawful permanent resident leave the United States multiple times and return?

Summary

 

Date Published

3/17/2022 1:48 AM

Content

 

If you are a lawful permanent resident (green card holder), you may leave the United States multiple times and reenter, if you do not intend to stay outside the United States for 1 year or more.

If you intend to stay outside the United States for 1 year or more, you must apply for a re-entry permit with the U.S. Citizenship and Immigration Service (USCIS) prior to leaving the United States. A re-entry permit allows a lawful permanent resident or conditional permanent resident to apply for admission to the United States upon returning from abroad during the permit’s validity without the need to obtain a returning resident visa from a U.S. Embassy or U.S. Consulate. Re-entry permits are generally valid for 2 years from the date of issuance. Therefore, if you are outside of the United States longer than the date the permit was issued, you may be denied entry into the United States.

To apply for a re-entry permit, you must file an application for a travel document (I-131) with the USCIS. If you applied for permanent resident status but are not yet officially a lawful permanent resident "green card holder" and you need to leave the United States on emergency, you must apply for and receive advance parole to leave the United States by filing a I-131 with USCIS.

For additional information, see the USCIS Policy Manual.

If you are required to file documents prior to leaving the United States it is imperative that you do so, otherwise, you may be found inadmissible and denied reentry into the United States.

If you are a green card holder and you do not stay outside the United States for 1 year or more, you should have either your green card (I-551) or your returning resident visa to re-enter the United States. You are not required to present your unexpired passport; however, it is not a bad idea to carry it with you.

 

 

Article Number

000001430

[Mike E 11,739]

14 minutes ago, Dave Knapp said:

I don't have a dog in this fight, but if a LPR can return to the US after an absence of 3 years like most of you are saying, why does CBP have this guidance on their website?  Is the operable word "Intend?" I wouldn't want to quit my job and put my entire future in the hands of a CBP agent at the airport. Just sayin.

 

I wouldn’t either. Which is why as an LPR I never put myself in the position that countless other LPRs seem to do each day.  It mystifies me but they do.  
 

The fact is that LPRs legally cannot be denied physical entry in the U.S. . The only  discretion CBP legally has is whether to declare the LPR a retuning resident or and arriving alien.  
 

See also:

  https://help.cbp.gov/s/article/Article-3671?language=en_US#:~:text=The CBP officer will collect,final determination on your case

 

The above documents CBP policy and what happens when the LPR is declared to be an arriving alien. 

 

https://www.aila.org/File/Related/18110604b.pdf

The above documents the law that mirrors the previous link. 

 

 

Edited October 13, 2022 by Mike E