Former (Current?) Green Card holder looking to move back to US

[Sarah & Blair 2]

Greetings good people!

 

The abbreviated version of our story: I entered the US (from Canada) in 2012 on a K1 visa. We've been happily married since. Yay! Around the start of Covid we moved to Canada for family reasons and originally did not intend to return to the US in a full-time capacity... at least for the foreseeable future. Well, things have changed of course and now we're looking to return. My wife (US citizen by birth) is moving back next week for a new job and I'm hanging back here until we can secure an IR-1.

 

I do have a green card, but as per everything I read online, because I've been a full-time resident outside of the US for almost 3 years, it's considered as abandoned. Now, there's been nothing official from me or USCIS about said abandonment. I did find out recently that there is a form to formally notify that I'm not longer a resident, so I'll be filling that out immediately. I am kicking myself a bit for not knowing that before, but here we are.

 

Question is, does anyone know if we can just immediately apply for CR-1 after submitting the I-407 (green card abandonment) or if they may reject due to my having only just abandoned my green card?

 

Also, before anybody asks, yes we have thought about the SB-1, but it seems pretty clear that I have to have intended to return to the US all along and were unable, which is clearly not the case.

 

We are waiting to hear back from an immigration attorney but I figured I'd post here to see if anyone has any insight.

 

Cheers!

Edited December 5, 2022 by Sarah & Blair

[Crazy Cat 41,806]

Is your Green Card expired??  You are still a legal resident until a judge says otherwise.  DON'T SUBMIT the I-407 yet!!!

Edited December 5, 2022 by Crazy Cat

[OldUser 6,602]

If you have a valid green card, just try to enter the US with it. With intention of actually establishing your life in the states.

There is a chance, you may be admitted without an issue.

Edited December 5, 2022 by OldUser

[Crazy Cat 41,806]

I agree with @OldUser.  Enter with your Green card if it has not expired...

[Sarah & Blair 2]

@OldUser @Crazy Cat

 

Thanks for the quick replies! Thought about going that route. I suppose the issue is, I've entered the US numerous times over the last few years but haven't used my green card. I'm concerned CBP will question why. Trying to do this in a way that won't get me banned 🤣

[Crazy Cat 41,806]

4 minutes ago, Sarah & Blair said:

@OldUser @Crazy Cat

 

Thanks for the quick replies! Thought about going that route. I suppose the issue is, I've entered the US numerous times over the last few years but haven't used my green card. I'm concerned CBP will question why. Trying to do this in a way that won't get me banned 🤣

You have a valid Green Card.  You are a legal resident.  CBP cannot not deny entry.  Worst case scenario is they ask you to sign an I-407.  If they do, just refuse.

Edited December 5, 2022 by Crazy Cat

[OldUser 6,602]

8 minutes ago, Sarah & Blair said:

 

I've entered the US numerous times over the last few years but haven't used my green card.

But why? Moving forward always use it to enter the US.

[Sarah & Blair 2]

12 minutes ago, OldUser said:

But why? Moving forward always use it to enter the US.

Because the original intent wasn't to return... but yeah I do see your point and on hindsight I should have just used it every time regardless.

[carmel34 3,620]

I had similar circumstances, moved back to Canada from the US with my spouse and kids who were 10-year green card holders and Canadian citizens.  After three years in Canada, when I (US/Canadian dual citizen from birth) got a job in the US, I researched all the options and we decided to just file for new immigrant visas for them, but back in those days DCF was available from Canada and it only took three months, so we all moved back to the US together.  At their interviews (Vancouver consulate), they took their old green cards and put new immigrant visas in their Canadian passports, and the new green cards arrived a few weeks later at our new house in Texas.  We did not try to enter with the old green cards, even though they were still valid, because 1) the risk of having to eventually to appear before an immigration judge and prove that their LPR status was not abandoned (we had no evidence of this), 2) we crossed the border with a huge U-Haul truck filled with furniture (so it was very obvious that we had moved out of the country), 3) we were importing a car that we purchased in Canada, and 4) DCF made the process fast so it was easier and less risky.  Now that consular processing for a new IR-1 takes 1-2 years and DCF is mostly not available from Canada, it is a different situation.  Your decision, do the research and good luck!   

Edited December 5, 2022 by carmel34

[iwannaplay54 985]

7 hours ago, Sarah & Blair said:

Greetings good people!

 

The abbreviated version of our story: I entered the US (from Canada) in 2012 on a K1 visa. We've been happily married since. Yay! Around the start of Covid we moved to Canada for family reasons and originally did not intend to return to the US in a full-time capacity... at least for the foreseeable future. Well, things have changed of course and now we're looking to return. My wife (US citizen by birth) is moving back next week for a new job and I'm hanging back here until we can secure an IR-1.

 

I do have a green card, but as per everything I read online, because I've been a full-time resident outside of the US for almost 3 years, it's considered as abandoned. Now, there's been nothing official from me or USCIS about said abandonment. I did find out recently that there is a form to formally notify that I'm not longer a resident, so I'll be filling that out immediately. I am kicking myself a bit for not knowing that before, but here we are.

 

Question is, does anyone know if we can just immediately apply for CR-1 after submitting the I-407 (green card abandonment) or if they may reject due to my having only just abandoned my green card?

 

Also, before anybody asks, yes we have thought about the SB-1, but it seems pretty clear that I have to have intended to return to the US all along and were unable, which is clearly not the case.

 

We are waiting to hear back from an immigration attorney but I figured I'd post here to see if anyone has any insight.

 

Cheers!

hmm “unable” isn’t exactly the standard.  Was your wife working for a US company in Canada?

[Sarah & Blair 2]

22 minutes ago, iwannaplay54 said:

hmm “unable” isn’t exactly the standard.  Was your wife working for a US company in Canada?

No she became a Canadian PR and worked for a company here.

[Sarah & Blair 2]

@carmel34

Thanks for sharing your experience! I think the only thing that concerns me about our situation is this:

"1) the risk of having to eventually to appear before an immigration judge and prove that their LPR status was not abandoned (we had no evidence of this)"

 

We don't really have any evidence of this either, other than keeping bank accounts/credit cards etc. I've been working as a freelancer for US companies but that can be done anywhere so I have to assume that's not proof of maintaining LPR status.

[iwannaplay54 985]

8 minutes ago, Sarah & Blair said:

No she became a Canadian PR and worked for a company here.

We SB1 returned in 2018 after four years out and you are correct - the SB1 in your circumstance is DOA

Leaving you with starting over (we ALSO did that in 2011) OR taking the chance of getting through after a three year absence, leaving a future determination of “abandoned status” hanging over your head. 
I would concur with what you are planning - refile, get a fresh IV, and return with no consequence.

We abandoned status (filed the form / turned in the green card) and re-filed at the same consulate a few weeks later.  Put a copy of the signed abandonment of status in the new I130 package to avoid confusion.

Good luck whatever you decide to do!

Edited December 6, 2022 by iwannaplay54

[Crazy Cat 41,806]

31 minutes ago, Sarah & Blair said:

other than keeping bank accounts/credit cards etc.

and tax filing?  Just enter the US with your valid Green Card.  

[Crazy Cat 41,806]

36 minutes ago, Sarah & Blair said:

I think the only thing that concerns me about our situation is this:

Chances are very low.....There are people who have entered with no problems after far more than 3 years. Otherwise, you are looking at 2 years for an IR-1. 

Good Luck.  I'm out..

 

@Mike E might have something to add.

Edited December 6, 2022 by Crazy Cat