Risk of flying on ESTA (tourist visa) with pending I-130 with kids?

[SalishSea 17,828]

3 hours ago, Femke Muntz said:

Thank you! Yes my plan is moving there permanently. Our house in the Netherlands is sold and we have to be out December 16. So no more ties there unfortunately. No work ties either. I can’t leave my youngest two behind of course so they have to travel with me or their dad separately. But that seems id be hiding them. My older two boys are going next week by themselves with assistance. I can go for two months and not three if that looks better. 
 

How long should I stay in the Netherlands in between us visits? 

Selling up and your family moving over long before you do will make getting an ESTA very challenging, IMO.  You could be a year away from getting the immigrant visa.  Any reason why it wasn't planned out better in terms of the timing?

[pushbrk 12,882]

4 hours ago, Femke Muntz said:

 

If I stay for two months and then three months in the Netherlands "while I wait for my visa"... that should be ok right? Maybe even mention to immigration I'm going back for my interview and biometrics at the embassy in Amsterdam? Does it look worse or better if my husband flies with me and the little kids? Just in case I get deported, he can take the kids for a couple of weeks and then fly them back. Ugh it's so stressful not knowing. I think it all depends on the immigration officer too? Gotta catch a nice person...

That will do nicely.  Not better or worse for your husband to travel with you in this context.  

[Femke Muntz 4]

4 hours ago, Jorgedig said:

Selling up and your family moving over long before you do will make getting an ESTA very challenging, IMO.  You could be a year away from getting the immigrant visa.  Any reason why it wasn't planned out better in terms of the timing?

Well we were just in time with selling our house since the market crashed here in the Netherlands. So no we had no option and ended up being lucky. Not to mention at the time of application it said it would only take 5 months for the whole process. 3 months later they changed it to 10,5 months and they moved our case to Texas last month.. so we’re looking at at least 11,5 total. Been processing since March 2022. From reading other stories, it can at least take 1,5 years. 

4 hours ago, SusieQQQ said:

I’d suggest first actually applying and getting approved for ESTA before asking all the questions. It takes a few minutes, yes?

Yeah I got approved for it

[Femke Muntz 4]

20 minutes ago, pushbrk said:

That will do nicely.  Not better or worse for your husband to travel with you in this context.  

Thanks!

[SteveInBostonI130 3,434]

1 hour ago, Femke Muntz said:

Well we were just in time with selling our house since the market crashed here in the Netherlands. So no we had no option and ended up being lucky. Not to mention at the time of application it said it would only take 5 months for the whole process. 3 months later they changed it to 10,5 months and they moved our case to Texas last month.. so we’re looking at at least 11,5 total. Been processing since March 2022. From reading other stories, it can at least take 1,5 years. 

Yeah I got approved for it

 

Congrats on getting the ESTA.

 

If you can, you may want to try for a pre-clearance airport.  I believe Dublin, Ireland is one.  Fly from there or connect through there and you will know if CBP will allow you entry before a 6-8+ hr flight.

[Mike E 11,739]

4 hours ago, Femke Muntz said:

 

Yeah I got approved for it

Yeah that’s too bad you applied especially  since legally you aren’t eligible. I’m really surprised that the consensus advice was to apply for ESTA since the law clearly says LPRs aren’t eligible for ESTA.  
 

Use the ESTA to board the flight but present your green card when you land at a U.S. port of entry. If you are asked to sign I-407, then it seems like you are inclined to go though the IR-1 process so sign I-407. You should be admitted and you might even be granted a 6 month stay.  
 

If you aren’t asked, and you aren’t given an NTA then worse case you are required to file I-193 and pay the fee (and then you will wish you had filed I-90 online before you boarded the flight). But I-193 or not: you are home free. You can cancel the I-130, file I-90 to get a new gc and resume  your life in America. 
 

I’m jumping in late because the thread title has nothing to do with the actual issue: an LPR with an expired gc trying to return to the U.S. after a 7 year absence. 

Edited October 15, 2022 by Mike E

[Femke Muntz 4]

1 hour ago, Mike E said:

Yeah that’s too bad you applied especially  since legally you aren’t eligible. I’m really surprised that the consensus advice was to apply for ESTA since the law clearly says LPRs aren’t eligible for ESTA.  
 

Use the ESTA to board the flight but present your green card when you land at a U.S. port of entry. If you are asked to sign I-407, then it seems like you are inclined to go though the IR-1 process so sign I-407. You should be admitted and you might even be granted a 6 month stay.  
 

If you aren’t asked, and you aren’t given an NTA then worse case you are required to file I-193 and pay the fee (and then you will wish you had filed I-90 online before you boarded the flight). But I-193 or not: you are home free. You can cancel the I-130, file I-90 to get a new gc and resume  your life in America. 
 

I’m jumping in late because the thread title has nothing to do with the actual issue: an LPR with an expired gc trying to return to the U.S. after a 7 year absence. 

Everything I’ve read online tells me that after that much absence (filed or not) you’re not a LPR anymore… I’m so confused. The I-90 states the reason of leaving US has to be “out of your control”.. and temporary but it wasn’t. We moved to Netherlands as a family and I let it all go not thinking we’d return this soon. 

[SusieQQQ 11,586]

1 hour ago, Mike E said:

…
 

Use the ESTA to board the flight but present your green card when you land at a U.S. port of entry. If you are asked to sign I-407, then it seems like you are inclined to go though the IR-1 process so sign I-407. You should be admitted and you might even be granted a 6 month stay.  

ESTA/VWP max permissible stay is 90 days.

 

or they night get a particularly nice CBP officer who lets them in on green card rather than making them go through process again. Admittedly that is a VERY long shot but we had a couple similar reports here before, there was that Russian lady who got admitted as a LPR after 5 years out with no particularly good reason for being gone so long.

 

2 minutes ago, Femke Muntz said:

Everything I’ve read online tells me that after that much absence (filed or not) you’re not a LPR anymore… I’m so confused. The I-90 states the reason of leaving US has to be “out of your control”.. and temporary but it wasn’t. We moved to Netherlands as a family and I let it all go not thinking we’d return this soon. 

It is confusing, because on the one hand you are deemed to abandon it after a year, on the other hand if you don’t formally abandon it you could still be held to for example liability to file taxes with the IRS. Seems to be a big grey area around when you actually lose it if you haven’t signed a i407

[Boiler 45,486]

13 minutes ago, Femke Muntz said:

Everything I’ve read online tells me that after that much absence (filed or not) you’re not a LPR anymore… I’m so confused. The I-90 states the reason of leaving US has to be “out of your control”.. and temporary but it wasn’t. We moved to Netherlands as a family and I let it all go not thinking we’d return this soon. 

This was mentioned on the first few posts

[Mike E 11,739]

16 minutes ago, Femke Muntz said:

Everything I’ve read online tells me that after that much absence (filed or not) you’re not a LPR anymore…

16 minutes ago, Femke Muntz said:

I’m so confused. The I-90 states the reason of leaving US has to be “out of your control”..

I-90 is for renewing a green card. Where does I-90 talk about leaving the U.S?

16 minutes ago, Femke Muntz said:

and temporary but it wasn’t. We moved to Netherlands as a family and I let it all go not thinking we’d return this soon. 

Regardless only a judge (and a parent of an LPR who is under age 18) can revoke your LPR status.  The departments of state and homeland security will dissemble to the contrary  but the law is clear.  
 

 

[Lil bear 4,201]

9 minutes ago, SusieQQQ said:

ESTA/VWP max permissible stay is 90 days.

 

or they night get a particularly nice CBP officer who lets them in on green card rather than making them go through process again. Admittedly that is a VERY long shot but we had a couple similar reports here before, there was that Russian lady who got admitted as a LPR after 5 years out with no particularly good reason for being gone so long.

 

It is confusing, because on the one hand you are deemed to abandon it after a year, on the other hand if you don’t formally abandon it you could still be held to for example liability to file taxes with the IRS. Seems to be a big grey area around when you actually lose it if you haven’t signed a i407

Yes there is a gap. Two ways of going from LPR to non LPR status 

 

1. you voluntarily relinquish using the I407

2. You are assessed as having failed to maintain LPR status and have the status taken from you   This can only be as a result  of appearing before an immigration judge and the judge making the determination. This process is possibly what will happen if you arrive at POE and assessed by CBP as failing to maintain LPR status. It can take years for the appearance to happen, during which time you can address back tax returns, establish your residency and then plead your case 

 

My question is now that you have a ESTA associated with your passport .. what dies the system do with both an ESTA and a GC.  The recommendation to use a preclearance departure location would give you an answer before the long flight 

[Mike E 11,739]

28 minutes ago, SusieQQQ said:

ESTA/VWP max permissible stay is 90 days.

 

 

No where  did I say OP would enter on an ESTA / VWP. OP is an LPR. It is illegal for OP to present OP to CBP as someone seeking an visa waiver while OP is an LPR. That ESTA is null and void.  It’s useful to use it to board since arguing with an airline to board with a gc that expired 4 years ago is sometimes futile. But OP is not eligible for ESTA.  
 

After OP signs I-407 (and if I were OP I would not) then OP can ask CBP for admittance to the USA under a B status.    And CBP has authority to grant stays longer than 90 days. Even longer than 6 months.  Sometimes if not often, CBP and LPRs negotiate an I-407 deal conditioned on being admitted under a B-2 status. 

Edited October 15, 2022 by Mike E

[Mike E 11,739]

7 minutes ago, Lil bear said:

 The recommendation to use a preclearance departure location would give you an answer before the long flight 

IMHO, that  recommendation makes it more likely OP won’t be able to board a flight to the USA.  

[Femke Muntz 4]

3 minutes ago, Mike E said:

IMHO, that  recommendation makes it more likely OP won’t be able to board a flight to the USA.  

Ok.. do I get on a flight with an 4 year expired green card???? Am I really still a legal permanent resident after 7 years abroad? I’m reading opposite things!

[Lil bear 4,201]

2 minutes ago, Femke Muntz said:

Ok.. do I get on a flight with an 4 year expired green card???? Am I really still a legal permanent resident after 7 years abroad? I’m reading opposite things!

Its yes and no