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

[pushbrk 12,897]

2 minutes ago, Jorgedig said:

For immigration purposes, all non-citizens are aliens.

Correct.   People with valid green cards are Aliens who have LPR status.

[Mike E 11,739]

36 minutes ago, pushbrk said:

Q:	Will I be able to travel into or through the United States?
A:	Aliens seeking to lawfully enter into the United States must establish their admissibility to the satisfaction of the CBP officer. This is done as part of the inspection process. The reasons that a traveler who is applying for admission into the United States could be inadmissible are found in INA § 212(a).

 

 

https://www.cbp.gov/travel/international-visitors/applying-admission-united-states

You did not  include this in the CBP link you excerpted:

 

“

1. Home 
2.  
3. Travel 
4. For International Visitors 
5. Applying for Admission into United States”

An LPR is not a visitor. We know this from the what LPR stands for: lawful permanent resident 

 

Also an LPR doesn’t apply for admission. That happens when the alien is not yet an LPR, either at the port of entry when carrying an immigration visa or when I-485 is approved. 
 

https://www.cbp.gov/travel

 

“

For U.S. Citizens/Lawful Permanent Residents

If you are a U.S. citizen traveling abroad, get the information you need to smoothly navigate your return back into the U.S. 

For International Visitors

If you are a visitor to the U.S. coming to work, study, conduct business or immigrate, get the Information you need to smoothly navigate the process and procedures to enter the U.S. 

“

You opted to select a higher level link that clearly does not apply to LPRs.  That is incorrect 

 

 

[Mike E 11,739]

13 minutes ago, Femke Muntz said:

I guess I wouldn’t be an alien? 

You are an alien. You are not an alien seeking admission which is what @pushbrk is referencing. 
 

You are an LPR. LPRs were formerly known  as “Resident Alien” (one of my green cards says Resident Alien on it).  
 

An LPR  doesn’t seek admission because  admission was already granted. Permanent granted. Your green card, even though expired, is evidence of that fact.  

Edited October 15, 2022 by Mike E

[pushbrk 12,897]

1 minute ago, Mike E said:

You did not  include this in the CBP link you excerpted:

 

“

1. Home 
2.  
3. Travel 
4. For International Visitors 
5. Applying for Admission into United States”

An LPR is not a visitor. We know this from the what LPR stands for: lawful permanent resident 

 

Also an LPR doesn’t apply for admission. That happens when the alien is not yet an LPR, either at the port of entry when carrying an immigration visa or when I-485 is approved. 
 

https://www.cbp.gov/travel

 

“

For U.S. Citizens/Lawful Permanent Residents

If you are a U.S. citizen traveling abroad, get the information you need to smoothly navigate your return back into the U.S. 

For International Visitors

If you are a visitor to the U.S. coming to work, study, conduct business or immigrate, get the Information you need to smoothly navigate the process and procedures to enter the U.S. 

“

You opted to select a higher level link that clearly does not apply to LPRs.  That is incorrect 

 

 

I think trying to enter as an LPR with two small children in tow, is actually more risky than entering with ESTA.  It's an opinion.  Opinions vary.

 

The OP, I think, now realizes her visit for a couple months will bring her much more than a couple months closer to getting her visa.  She's at least a year away from a visa, not 4 or 5 months.  On the other hand, if she decides to try it your way, then she might as well come prepared to stay permanently, or stay with a court date determining how long she stays, and some hefty legal fees.

 

[Mike E 11,739]

54 minutes ago, pushbrk said:

I think trying to enter as an LPR with two small children in tow, is actually more risky than entering with ESTA.  It's an opinion.  Opinions vary.

I think trying to enter as a visitor instead of an LPR is illegal.  There shouldn’t be an opinion on this.  
 

Attempting to enter on an ESTA then being caught and then getting yelled at and threatened by CBP for the attempt is also not good in the presence of small children.   
 

Here is what might  happen.  OP will illegally enter on an ESTA, succeed, then decide to later file I-90.  That will potentially cause even more trauma down the road to OP’s family. 

 

54 minutes ago, pushbrk said:

 

The OP, I think, now realizes her visit for a couple months will bring her much more than a couple months closer to getting her visa.  She's at least a year away from a visa, not 4 or 5 months.  On the other hand, if she decides to try it your way, then she might as well come prepared to stay permanently, or stay with a court date determining how long she stays, and some hefty legal fees.

 

And sure enough there it is.  
 

If the goal is to enter the USA and avoid trauma to the kids, then enter as an LPR, ask to sign I-407 if challenged by CBP, and then enter as a visitor. 
 

At any rate there is too much advocacy of illegal activity in this thread. I am out.  

[SusieQQQ 11,586]

Actually … an LPR who has been absent for longer than 180 days IS seeking admission, pushbrk is correct on this matter. This is why some lawyers advise LPRs not to be absent longer than 6 months despite the 12 month timeline for deeming residence abandoned.

 

Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), lists the situations in which a person who has been admitted as an LPR can be regarded as seeking admission:

(i) has abandoned or relinquished [LPR] status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under [the INA] and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

 

[Femke Muntz 4]

4 hours ago, SusieQQQ said:

Actually … an LPR who has been absent for longer than 180 days IS seeking admission, pushbrk is correct on this matter. This is why some lawyers advise LPRs not to be absent longer than 6 months despite the 12 month timeline for deeming residence abandoned.

 

Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), lists the situations in which a person who has been admitted as an LPR can be regarded as seeking admission:

(i) has abandoned or relinquished [LPR] status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under [the INA] and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

 

Thanks! So do you recommend esta above anything else? I’m so confused on what to do.. 

[Femke Muntz 4]

6 hours ago, Mike E said:

I think trying to enter as a visitor instead of an LPR is illegal.  There shouldn’t be an opinion on this.  
 

Attempting to enter on an ESTA then being caught and then getting yelled at and threatened by CBP for the attempt is also not good in the presence of small children.   
 

Here is what might  happen.  OP will illegally enter on an ESTA, succeed, then decide to later file I-90.  That will potentially cause even more trauma down the road to OP’s family. 

 

And sure enough there it is.  
 

If the goal is to enter the USA and avoid trauma to the kids, then enter as an LPR, ask to sign I-407 if challenged by CBP, and then enter as a visitor. 
 

At any rate there is too much advocacy of illegal activity in this thread. I am out.  

Thanks for the help. It's all just so contradictory, we feel lost on how to go about this but I appreciate all the info!!

[pushbrk 12,897]

2 hours ago, Femke Muntz said:

Thanks for the help. It's all just so contradictory, we feel lost on how to go about this but I appreciate all the info!!

Yes opinions vary. Your husband can always consult a qualified immigration attorney.

[Femke Muntz 4]

Just now, pushbrk said:

Yes opinions vary. Your husband can always consult a qualified immigration attorney.

Will do!

[Hocnos 8]

There is so much going in this thread, and so much bad advice. Let's get the facts straight:

 

Once you become Permanent Resident of the US, you are a resident, permanently, unless (among other factors) you demonstrate intent to no longer reside in the United States. From your messages here it sounds like your intent is to reside in the US, so my question is: Did you file for SB1? Why do you have i130 pending? You already have GC, although expired, meaning you already are a LPR.

 

Now, for the travel to the US, what are your intentions? Be honest here, because you only have 1 try, so it is important to do it right.

1. If your intent is to go back and seek reinstatement of your LPR status, then you should plan to travel to the US with that intention, for long-term/permanent stay, not just a visit. I assume this is the case, as you already have i130 pending.
2. If your intent is to just visit and come back to the Netherlands for some other reason than waiting for the i130 to process, then my advice would be to not travel at all (need more information).

So, if your intent is to reinstate your LPR status in the US, you can fly to and enter the US using your 10 year GC alone even if it's expired. You will be questioned and asked to sign i407, but you can refuse and you will be paroled in and set for immigration court date. CBP officer cannot deny entry to LPRs. Period. That has to come from the Immigration Judge. Although the reasons for your long-term departure from the US are unclear to me, your case is pretty straightforward - your husband and kids are USCs.

 

Again, however, why do you have pending i130? You are already LPR, or did I miss something? Your application might raise questions when processing by USCIS, as they will locate your old files and wonder why you're applying for a green card when you already appear to have one. Usually, just to make sure the record is clear, its recommended to file i407, before submitting the new i130.

Edited October 18, 2022 by Hocnos

[Femke Muntz 4]

3 hours ago, Hocnos said:

There is so much going in this thread, and so much bad advice. Let's get the facts straight:

 

Once you become Permanent Resident of the US, you are a resident, permanently, unless (among other factors) you demonstrate intent to no longer reside in the United States. From your messages here it sounds like your intent is to reside in the US, so my question is: Did you file for SB1? Why do you have i130 pending? You already have GC, although expired, meaning you already are a LPR.

 

Now, for the travel to the US, what are your intentions? Be honest here, because you only have 1 try, so it is important to do it right.

1. If your intent is to go back and seek reinstatement of your LPR status, then you should plan to travel to the US with that intention, for long-term/permanent stay, not just a visit. I assume this is the case, as you already have i130 pending.
2. If your intent is to just visit and come back to the Netherlands for some other reason than waiting for the i130 to process, then my advice would be to not travel at all (need more information).

So, if your intent is to reinstate your LPR status in the US, you can fly to and enter the US using your 10 year GC alone even if it's expired. You will be questioned and asked to sign i407, but you can refuse and you will be paroled in and set for immigration court date. CBP officer cannot deny entry to LPRs. Period. That has to come from the Immigration Judge. Although the reasons for your long-term departure from the US are unclear to me, your case is pretty straightforward - your husband and kids are USCs.

 

Again, however, why do you have pending i130? You are already LPR, or did I miss something? Your application might raise questions when processing by USCIS, as they will locate your old files and wonder why you're applying for a green card when you already appear to have one. Usually, just to make sure the record is clear, its recommended to file i407, before submitting the new i130.

Thank you for your reply. The reason is because we didn’t know. We assumed my status was abandoned after 7 years and thought we had to reapply. Read that everywhere online but should have informed with uscis etc. Bad mistake. 
 

We should have applied for I-90 in hindsight but we didn’t. So now what? My intent is to go back permanently yes, but afraid I’ll get denied entry with an expired greencard, with a pending I-130 and flying on an esta. What a mess. 
 

And I can’t board a plane with an expired greencard.. so what do I do there. I’m not waiting another year either to go see my husband and three children. I will take the risk. 

[Hocnos 8]

22 minutes ago, Femke Muntz said:

And I can’t board a plane with an expired greencard..

Yes, you can. The document, from CBP, is official guidance for airlines to allow your boarding. You can print it and bring it with you. However, some airlines might have a problem with that, true - if you don't feel confident in arguing with them, just show them your ESTA and say nothing about the GC. Once at the border, to the officer admitting you in, show the GC and say nothing about the ESTA. You can also withdraw the i130, but I would not do that.

 

Did you get your original GC through your current husband? Or by some other means? While you lived in the Netherlands for 7 years, were you separated from your husband or were you together? What was the reason for your departure from the US? These questions and more will be asked to establish whether your residence can be reinstated.

Edited October 18, 2022 by Hocnos

[Femke Muntz 4]

7 minutes ago, Hocnos said:

Yes, you can. The document, from CBP, is official guidance for airlines to allow your boarding. You can print it and bring it with you. However, some airlines might have a problem with that, true - if you don't feel confident in arguing with them, just show them your ESTA and say nothing about the GC. Once at the border, to the officer admitting you in, show the GC and say nothing about the ESTA. You can also withdraw the i130, but I would not do that.

 

Did you get your original GC through your current husband? Or by some other means? While you lived in the Netherlands for 7 years, were you separated from your husband or were you together? What was the reason for your departure from the US? These questions and more will be asked to establish whether your residence can be reinstated.

We’ve been married for 17 years and yes I got my visa based on our marriage. We moved back to the Netherlands together in 2015. Basically for family reasons (I was pregnant with our fourth child etc). We could definitely play it so it looks like we had move back for a job that my husband was offered in Amsterdam. We always planned to return but Corona delayed us etc etc. 
 

But they will ask why we didn’t just renew my greencard in time. What would I say? Didn’t know? Forgot? That looks bad. Also do you know if need to be vaccinated for COVID for my return as a LPR? I know I need to be with an esta. So if I don’t get boarded as lpr I might as well be sure. 
 

thanks so much!!

Edited October 18, 2022 by Femke Muntz

[Hocnos 8]

19 minutes ago, Femke Muntz said:

Also do you know if need to be vaccinated for COVID for my return as a LPR?

If you are not using your GC to fly, then yes, you are required to be fully vaccinated.

 

20 minutes ago, Femke Muntz said:

What would I say?

I will not advice an any narratives you should use when talking to the CBP/USCIS officials, as you should always say the truth, but will say delays due to covid, health and family reason, including and not limited to child birth are all legitimate.

 

46 minutes ago, Femke Muntz said:

I’m not waiting another year either to go see

Also, be warned, if you do this, you will have to appear for hearings and present your case before an immigration judge who will ultimately decide on your case based on the evidence presented. It will be long and potentially expensive process, and I would recommend you get an immigration lawyer. It won't be easy.

 

Lastly, I would suggest to move this thread to the LPR forum, as you are a LPR and should investigate reinstatement of your status before you go through the CR1 route.