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

[Nicolo Vito Nesta 1]

I'm a little more confused now. I have read many users who advise me to get on the plane without creating problems but others tell me what I have already read online, which is that when an LPR stays out of the United States for more than 180 consecutive days, CBP can deny you entry. how much could it claim that you have abandoned your US citizen satatus. This is my doubt: to enter without delay or to rely on the advice of an official body such as the consulate that issued me the visa?

If I make this "jump" I coulfall badly.

[Mike E 11,739]

9 minutes ago, Nicolo Vito Nesta said:

CBP can deny you entry

I’ve provided you a reference from  CBP that says otherwise. 

[mindthegap 2,590]

3 hours 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.

 

 

 

It's a valid point.

However, CBP and USCIS (thankfully) have no authority to strip someone of their Permanent Resident status, no matter how much they want to.

They can suspect presumed abandonment, and refer to immigration court, but that's about it. They can also try to trick you into signing an I-407, but cannot force you to do so.

They CANNOT send you back as if you were on a visa, a non-immigrant seeking entry, or on the VWP - it simply does not work that way. 

USCIS and CBP write, act and like to think that they are judge, jury and executioner - a perfect example of this is USCIS I-751 denial letters where they state words to the effect of that 'your status  as lawful permanent resident and all the rights afforded to you by that status, such as work, are terminated as of the date of this letter' which is a blatant lie, and not legally factual, truthful or accurate.

Thankfully they are not the judge jury and executioner, and you have the right to due process as a permanent resident. 

 

A lawful permanent resident - or someone presenting as one at a POE - has the absolute right to a hearing with an immigration judge to determine if they remain so or have lost it (via abandonment, criminal reasons, or whatever) and USCIS/CBP has no such authority to make such a determination. 

An immigration judge is the ONLY person who can strip someone of their permanent resident status. These rights are enshrined in law, case law, and are established fact. 

 

 

EDIT-

There is also a very crucial word in that link you posted. 'INTENDED'. Intent is everything in immigration law. Did the OP intend to stay out for such a long time?. Even if they did not intend to, covid happened, the world shut down, careers were lost, and it was a big whole mess.

That's precisely what you would get to present to an immigration judge if referred to immigration court for presumed abandonment, and why CBP cannot just say 'nah, mate, not coming in. Back you go' to someone presenting as a lawful permanent resident who has been out for longer than anticipated, perhaps for circumstances beyond their control. 

Edited October 13, 2022 by mindthegap

[Crazy Cat 41,857]

54 minutes ago, Nicolo Vito Nesta said:

how much could it claim that you have abandoned your US citizen satatus.

Only an Immigration Judge can revoke legal resident status.  The only thing CBP can do is to try to get you to surrender status....which you should never do under pressure.

[Crazy Cat 41,857]

1 hour ago, Nicolo Vito Nesta said:

This is my doubt: to enter without delay or to rely on the advice of an official body such as the consulate that issued me the visa?

The consulate has absolutely no jurisdiction in the matter.....none.  You are overthinking this.  Get on the plane and return to the US.

[Nicolo Vito Nesta 1]

Thanks again to those who have dedicated their time to my cause.
In summary, I am always an LPR and only an immigration judge can make me lose this status. At the most, at customs they can keep my green card and send me to the court, always remaining in the US and with the all necessary time. So I'm thinking it would be a good idea to seek out a lawyer immigration attorney in New York, because I will arrive at JFK, in case CBP blocks me and causes trouble entering the US. Anyone have a name to suggest to me?

 

[maEL 4]

On 10/19/2022 at 10:30 PM, Nicolo Vito Nesta said:

Thanks again to those who have dedicated their time to my cause.
In summary, I am always an LPR and only an immigration judge can make me lose this status. At the most, at customs they can keep my green card and send me to the court, always remaining in the US and with the all necessary time. So I'm thinking it would be a good idea to seek out a lawyer immigration attorney in New York, because I will arrive at JFK, in case CBP blocks me and causes trouble entering the US. Anyone have a name to suggest to me?

 

Unneccesary cost.  But if it will help you put to sleep in the night, you might as well go for it.

[Nicolo Vito Nesta 1]

In other forum an user suggest me

"You can apply a DS-117 petition with all your documentation and explanation that you have ties to the US and that your extended absence was for reasons outside your control"

Is it correct?
 

[nastra30 2,287]

51 minutes ago, Nicolo Vito Nesta said:

In other forum an user suggest me

"You can apply a DS-117 petition with all your documentation and explanation that you have ties to the US and that your extended absence was for reasons outside your control"

Is it correct?
 

It's correct if you want to obtain SB-1 returning IV.

But why go through that trouble if you can simply just board a plane with your unexpired GC to the US? Again, only immigration judge can revoke your greencard; board a plane to the US and refuse to any I-407 at the airport.

 

Edited October 23, 2022 by nastra30

[Mike E 11,739]

1 hour ago, Nicolo Vito Nesta said:

In other forum an user suggest me

"You can apply a DS-117 petition with all your documentation and explanation that you have ties to the US and that your extended absence was for reasons outside your control"

Is it correct?
 

 
 

This is an application for a returning resident visa aka SB-1. Approvals are hard to get. Waste of time and money IMHO.  
 

 

[Nicolo Vito Nesta 1]

Hi,

I am an LPR but have been out of the US for over 3 years. I have a family based visa as my wife is a US citizen. My Green Card will expire in 2029. Now we would like to go back to the US but I know very well that at the entrance the CBP staff will most likely will object because they will argue that I have abandoned my LPR status. My doubt now is whether to try the SB-1 visa route or submit the I-407 form, i.e. renounce the GC, and request a new petition with the Form I-130. I am familiar with the I-130 form as I applied it in 2018 when I got my Green Card. I have no experience with the SB-1 form but basically I would have to prove to the consulate that when I left the US I didn't intend to leave permanently the US. In all honesty, I don't have much to prove this: when I returned to Italy it was to stay there for a few months, I had sold my car and had left the apartment I had rented as it didn't seem appropriate to pay for several months without living there.  All this seems to be abandonment. So my dilemma is now  Form I-407 and then Form I-130 which I know well because already presented or SB-1 petition which I do not know but may be more simply but would allow me to return to the US within 2 years, but with uncertain times and few arguments in my favor.

Anyone have experiences of this kind? Tips?

Other users have suggested that I try to enter the US anyway as I cannot be rejected if I have a valid Green Card. It's all true.

But I consulted with 2 immigration lawyers and they both advised me against this route because then I would have to prove to an immigration judge that I still wanted to return to the US. And that is the same problem I would have with the SB-1 visa.

I don't want to enter the US with the doubt if they let me in or block me. I travel with my wife and 2 dogs in tow. If I were to be stuck at the airport even for a single day my wife would have great difficulty alone with luggage and the natural needs of my dogs. We have no one there who can help her. So I want to make sure I have what it takes.

Nicolo

[Boiler 45,516]

No doubt it has happened to somebody but certainly in the last few years I have not seen somebody referred to an IJ.

 

SB1 is much easier to comment on, you sold everything etc, headed out been gone for 3 years, did you retain anything in the US?, you make it sound like you just moved.

[Crazy Cat 41,857]

28 minutes ago, Nicolo Vito Nesta said:

Hi,

I am an LPR but have been out of the US for over 3 years. I have a family based visa as my wife is a US citizen. My Green Card will expire in 2029. Now we would like to go back to the US but I know very well that at the entrance the CBP staff will most likely will object because they will argue that I have abandoned my LPR status. My doubt now is whether to try the SB-1 visa route or submit the I-407 form, i.e. renounce the GC, and request a new petition with the Form I-130. I am familiar with the I-130 form as I applied it in 2018 when I got my Green Card. I have no experience with the SB-1 form but basically I would have to prove to the consulate that when I left the US I didn't intend to leave permanently the US. In all honesty, I don't have much to prove this: when I returned to Italy it was to stay there for a few months, I had sold my car and had left the apartment I had rented as it didn't seem appropriate to pay for several months without living there.  All this seems to be abandonment. So my dilemma is now  Form I-407 and then Form I-130 which I know well because already presented or SB-1 petition which I do not know but may be more simply but would allow me to return to the US within 2 years, but with uncertain times and few arguments in my favor.

Anyone have experiences of this kind? Tips?

Other users have suggested that I try to enter the US anyway as I cannot be rejected if I have a valid Green Card. It's all true.

But I consulted with 2 immigration lawyers and they both advised me against this route because then I would have to prove to an immigration judge that I still wanted to return to the US. And that is the same problem I would have with the SB-1 visa.

I don't want to enter the US with the doubt if they let me in or block me. I travel with my wife and 2 dogs in tow. If I were to be stuck at the airport even for a single day my wife would have great difficulty alone with luggage and the natural needs of my dogs. We have no one there who can help her. So I want to make sure I have what it takes.

Nicolo

This has been extensively discussed in your previous post.  My advice: Get on a plane and return to the US.....soon.  Regardless of the route you take, you will, likely, be questioned in secondary...

Edited November 4, 2022 by Crazy Cat

[Boiler 45,516]

6 minutes ago, Crazy Cat said:

This has been extensively discussed in your previous post.  My advice: Get on a plane and return to the US.....soon.  Regardless of the route you take, you will, likely, be questioned in secondary...

Have a like, should have guessed this was a repeat, hopefully a mod can combine as it gets so confusing and avoids everything being repeated.

[Crazy Cat 41,857]

1 minute ago, Boiler said:

Have a like, should have guessed this was a repeat, hopefully a mod can combine as it gets so confusing and avoids everything being repeated.

I have asked the friendly mods to merge.  

Edited November 4, 2022 by Crazy Cat