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

[SusieQQQ 11,586]

20 minutes ago, Mike E said:

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. 

You left out the bit about applying under b status before.  I answered according to what you actually wrote.

Edited October 15, 2022 by SusieQQQ

[Mike E 11,739]

10 minutes ago, Femke Muntz said:

Ok.. do I get on a flight with an 4 year expired green card????

use your esta to board since you have it now.  Present your gc at the port of entry. 

10 minutes ago, Femke Muntz said:

 

Am I really still a legal permanent resident after 7 years abroad?

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

 

Just now, SusieQQQ said:

You left out the bit about applying under b status before. 

????

[SusieQQQ 11,586]

24 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!

ok, I’m going to admit I misunderstood before, I thought you had left 4 years ago (and still had a before expiry green catd), not that your actual physical green card expired 4 years ago.  Perils of reading late at night. 
 

That said, CBP manual is the go-to for what they instruct airlines to allow you to board with. It says , p28

https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/2019 Carrier Information Guide - ENGLISH.pdf

Cards with expired I-551s may be boarded without penalty if the card was issued with a 10-year expiration date.

 

There is also a memo to carriers that specifically instructs them that it is not up to them to decide if someone has valid LPR status https://www.cbp.gov/sites/default/files/assets/documents/2021-Dec/Reminder- LPR Boarding 20210305.pdf

 

It repeats th above,

 

Expired Permanent Resident Cards: Ten-year validity
• LPRs with an expired I-551 may be boarded without penalty, provided the card was issued with a 10-year expiration date.

and explicitly also says 

Airlines should not be determining admissibility of a travel outside the parameters of the document requirements.
And there are phone numbers for CBP. So the bottom line is that (assuming your green card originally had 10-year validity), you can take it to the airport and demand to be boarded in accordance with CBP guidance. If they resist, insist they call their regional CBP liaison.

 

The fact that you applied for ESTA did make this more complicated, but the airline doesn’t have to know that.

Edited October 15, 2022 by SusieQQQ

[Femke Muntz 4]

25 minutes ago, Mike E said:

use your esta to board since you have it now.  Present your gc at the port of entry. 

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

 

????

Board with Esta, while I have an i130 pending, and showing my expired greencard in Denver, saying I never abandoned it but yet reapplied for new gc. It’s all so contradictory it seems?!

[pushbrk 12,882]

It's important to note that " technically having LPR status today" does not mean you'll be able to use it to enter the USA.  The CBP officer is highly likely to deny entry if presented a green card expired 4 years ago and no evidence of even being in the USA for even longer than that.  Further, you won't be able to check in for your flight, as the airline will surely notice your card is expired.  ESTA is the way to go if you can get it.  If you still have your green card you could show it to CBP indicating you've been through the process before, you're going through it again and you have no intention of joining your husband and children illegally or without legal status in the USA.

 

Expect to get the visa about 18 months + from petition filing. Timelines for petition approval are not timelines to a visa.

[Mike E 11,739]

1 minute ago, pushbrk said:

The CBP officer is highly likely to deny entry

This is not  published CBP policy. 
 

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

“You can contest the abandonment charge in immigration court. To do this, you will need to inform the CBP officer that you would like to appear before an immigration judge and check the appropriate box on form I-862 (Notice to Appear), which will be provided to you. The CBP officer will collect your actual green card, but will give you a temporary replacement document that confirms that you continue to be a permanent resident of the United States (until the immigration judge makes a final determination on your case). You will then be paroled into the United States”

 

[Mike E 11,739]

4 hours ago, Femke Muntz said:

Board with Esta, while I have an i130 pending, and showing my expired greencard in Denver, saying I never abandoned it but yet reapplied for new gc. It’s all so contradictory it seems?!

As per my comment above, nonetheless that is law and policy. 
 

You increase your odds of success if you file I-90 online and enter at an airport that uses facial recognition kiosks. These kiosks don’t read your (expired) green card.  

[pushbrk 12,882]

7 minutes ago, Mike E said:

This is not  published CBP policy. 
 

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

“You can contest the abandonment charge in immigration court. To do this, you will need to inform the CBP officer that you would like to appear before an immigration judge and check the appropriate box on form I-862 (Notice to Appear), which will be provided to you. The CBP officer will collect your actual green card, but will give you a temporary replacement document that confirms that you continue to be a permanent resident of the United States (until the immigration judge makes a final determination on your case). You will then be paroled into the United States”

 

Each entry is still a judgment call.  Not all actual actions follow ONE specific possible protocol.  Being paroled into the USA, means she'll still want to return to her country and obtain the visa, unless she is able to see a judge sooner, and successfully.  Sounds "possible" but extremely stressful and risky with two young children in tow.

I think a better possibility is to try to expedite the visa process, based on the financial hardship of having sold the house, and the expense of three of the family needing to live separately for another year or more.

 

Are the husband/petitioner's circumstances such that the younger children could be left in the US with him for the duration of the process?

[Mike E 11,739]

Just now, pushbrk said:

Each entry is still a judgment call

Cite please.  

[pushbrk 12,882]

5 minutes ago, Mike E said:

Cite please.  

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

[Femke Muntz 4]

40 minutes ago, pushbrk said:

Each entry is still a judgment call.  Not all actual actions follow ONE specific possible protocol.  Being paroled into the USA, means she'll still want to return to her country and obtain the visa, unless she is able to see a judge sooner, and successfully.  Sounds "possible" but extremely stressful and risky with two young children in tow.

I think a better possibility is to try to expedite the visa process, based on the financial hardship of having sold the house, and the expense of three of the family needing to live separately for another year or more.

 

Are the husband/petitioner's circumstances such that the younger children could be left in the US with him for the duration of the process?

We did do an expedite in august. Proof “got lost”.. and we got denied. Putting on another expedite as we speak. Most are denied. And no, my husband works fulltime, my youngest two need to stay with me at all times. 

[Femke Muntz 4]

34 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

I guess I wouldn’t be an alien? 

[SalishSea 17,828]

4 minutes ago, Femke Muntz said:

I guess I wouldn’t be an alien? 

For immigration purposes, all non-citizens are aliens.

[pushbrk 12,882]

1 minute ago, Femke Muntz said:

I guess I wouldn’t be an alien? 

If you check in with the airline using ESTA, I think you would be.  Airline is not going to allow you to check in using an expired green card.  Airlines are responsible for getting you back to your point of origin, if you are denied entry.  They are quite diligent in these matters.

 

For example, I'm a US Citizen living in the Philippines.  Pre-COVID, all I needed to enter the Philippines as a tourist was my US Passport, but NOW, I need to jump through some COVID related hoops beforehand.  Often, the PH Bureau of Immigration asks for little or any of this upon entry but the AIRLINES always asks for all of it at check-in.  I re-entered in March and a good friend last week.  Still the same hoops but even less "inspection" upon entry.

 

[SusieQQQ 11,586]

1 hour ago, pushbrk said:

It's important to note that " technically having LPR status today" does not mean you'll be able to use it to enter the USA.  The CBP officer is highly likely to deny entry if presented a green card expired 4 years ago and no evidence of even being in the USA for even longer than that.  Further, you won't be able to check in for your flight, as the airline will surely notice your card is expired.  ESTA is the way to go if you can get it.  If you still have your green card you could show it to CBP indicating you've been through the process before, you're going through it again and you have no intention of joining your husband and children illegally or without legal status in the USA.

 

Expect to get the visa about 18 months + from petition filing. Timelines for petition approval are not timelines to a visa.

The airline is instructed to board holder of an expired green card if it was a  10 year card. See official CBP links I posted earlier.