URGENT! Think Ive made a big mistake with my green card

[UKspouseUSwife 16]

Got a BIG problem, my first post and desperate for help! I'm the Husband of US citizen, we married in 2012 and got my US Citizen Wife settled in UK and obtained her UK citizenship and passport. We much later then applied for a US spouse visa in 2018, got my green card (LPR)  in 2019 and moved to USA in August 2020, with the intent to spend the required more than 50% of the next 3 years there to meet naturalization requirements and then apply for my Citizenship, I also got my social security card. We left the US to return to UK in March 2020, after 8 months presence, then intended to go back in less than 6 months to start the 2^nd year of the process - THEN COVID HIT so we were unable to return as planned.

 

We VERY STUPIDLY were completely unaware of the rule where being out of the US more than a year is a problem and we haven't been back to USA since, due firstly to COVID lockdown (which held us out of the US for more than a year anyways) then more recently decided to work on releasing some of my property in UK ready to move to US.

 

Without realising this would be a problem, we are booked on a flight to USA next week, intending to stay just over six months, thinking we could just restart the naturalization process when we just discovered this problem yesterday. We are also just about to finish buying a house in USA in the next couple of days. which was the reason for going now, to work on that (background = we bought a small condo in US in 2020 as our main residence and have owned several rental properties there which we bought in 2008, we recently sold two of the condos which is paying for the new house which is to be our new main residence and we will then sell the small main residence condo once remodelled) We have been filing joint US taxes on the rental condos income since I got my green card and FBARs for any UK income earnt while there (we work freelance in UK on short term contracts)

 

What would be the best way forward for us now? I realise we cannot make the flight next week without severely risking my refusal at POE with LPR. We have hastily booked an SB-1 appointment at the London Embassy tomorrow, but after then looking at the only valid reasons for approval such as medical incapacity I cannot see me being successful, as we didn't try to go back to US straight after COVID, didn't apply for a re-entry permit and have now been out of US over 3 years, also looking at the horror stories online with SB-1 interviews and people being banned after, I think it could do us more harm than good?

 

After researching online till 4am this morning, I think I may need to complete a I-407 form officially renouncing my green card, wait for confirmation of that then reapply again with a new I-130? spouse sponsorship. 

 

Do I actually need to complete the I-407 and return the green card as some say its deemed as renounced by the period of absence? Surely I have to give the card back?

 

Some sites suggest getting an ESTA then renouncing the green card upon entry with border officer if they require it after explaining the situation? but I dont want to cause myself any problems or risk of getting a denial of entry, a ban etc.

 

If I do complete the form to renounce, am I able to go to US on an ESTA, to visit Wifes family and put some security in the new house BEFORE receiving the I-407 confirmation? - I understand I can go on ESTA during the spouse visa new application process.

 

Does anyone have any experience going to the US on an ESTA without the I-407 confirmation, during the I-130 process or even not sending the I-407 at all 

 

I can prove ties to US with houses, tax filing etc, Wifes bank accounts, my social security card - can that help me?

 

Any urgent advice would be a godsend, even if you can refer me to an expert to help?

 

Can believe I've screwed up after all the hassle getting my permanent resident card a few years ago......

 

Thanks so much

 

Paul

Edited September 7, 2023 by UKspouseUSwife
error spelling

[Mike E 11,741]

17 minutes ago, UKspouseUSwife said:

What would be the best way forward for us now?

Get on  a plane to the U.S.  

 

17 minutes ago, UKspouseUSwife said:

We have hastily booked an SB-1 appointment at the London Embassy tomorrow

Risky. You can be denied and they take your GC as well. I would not attend.

 

17 minutes ago, UKspouseUSwife said:

morning, I think I may need to complete a I-407 form officially renouncing my green card

Legally you cannot be forced to file I-407. I would not do that.

 

17 minutes ago, UKspouseUSwife said:

Does anyone have any experience going to the US on an ESTA

ESTA is not for LPRs.

17 minutes ago, UKspouseUSwife said:

risking my refusal at POE with LPR

Legally LPRs cannot be denied entry.

 

Your situation comes up several times a year on VJ. In all cases when there is a report, the report is the LPR is admitted into the U.S. as a returning resident. Some times there is warning.
 

 

Edited September 7, 2023 by Mike E

[Dashinka 24,653]

I agree with @Mike E.  Get on a plane.

 

Good Luck!

[EM_Vandaveer 2,408]

Do not try to get an SB-1. Get on a plane ASAP.

[UKspouseUSwife 16]

38 minutes ago, UKspouseUSwife said:

EDIT "moved to USA in August 2019" not 2020

 

 

Thanks for the quick replies - are you suggesting I get on the flight I have booked for next week ??? - my return flight isnt until March 28 2024 - point of entry is JFK, not final destination which is Las Vegas

 

you are not suggesting I get an ESTA I assume? I thought about changing my return flight to meet the ESTA 90 day?

 

Wont I risk being denied entry and get returned with a black mark against my records which will cause we more problems?

 

thanks again

 

Paul

[Mike E 11,741]

3 minutes ago, UKspouseUSwife said:

Thanks for the quick replies - are you suggesting I get on the flight I have booked for next week

Yes. Sooner the better.

 

Fly to the U.S.  Do not sign I-407. Do not leave for 3 years. Then file N-400

 

3 minutes ago, UKspouseUSwife said:

 

you are not suggesting I get an ESTA I assume?

LPRs are not eligible for ESTA. 

3 minutes ago, UKspouseUSwife said:

 

Wont I risk being denied entry and get returned with a black mark against my records which will cause we more problems?

LPRs legally cannot be denied entry

Edited September 7, 2023 by Mike E

[UKspouseUSwife 16]

10 minutes ago, Mike E said:

Yes. Sooner the better.

 

Fly to the U.S.  Do not sign I-407. Do not leave for 3 years. Then file N-400

 

Thanks Mike,

 

When you say do not leave for three years - I can leave back to UK over the next three yearsas long as majority of year is in US right?

 

'What would I need to say to the immigration guy upon entry, would I need documents to back up my case and wont I risk being sent home? Will this affect my 3 year naturalisation application in any way if I start the three year term from now?

[Mike E 11,741]

1 hour ago, UKspouseUSwife said:

I can leave back to UK over the next three yearsas long as majority of year is in US right?

You can try. 
 

You have been gone more than 3 consecutive years. If your leave the U.S. before you naturalize or accumulate 3.5 consecutive years of physical presence, you elevate your risk of a finding that you abandoned your LPR status.

[UKspouseUSwife 16]

11 minutes ago, Mike E said:

You can try. 
 

You have been gone more than 3 consecutive years. If your leave the U.S. before you naturalize or accumulate 3.5 consecutive years of physical presence, you elevate your risk of a finding that you abandoned your LPR status.

Sorry just trying to get my head around this 100%

 

Are you saying doing the following would jeopardize my chance of naturalisation in three years time after I have met the requirements of time in USA over the last few years?

 

Everything we've read states "physical presence" and "continuous residence" refer to the LAST THREE YEARS PRIOR TO SUBMITTING the N-400 3 years. And my intention was to start the three year process on that basis - wanted some time in UK to get things tied up here and sold,

 

If I can get in next week I was planning to stay there from next week till March 28th then come back for few months to get a house ready to sell then return and do another 7-8 months in usa then come back to tie up more Uk stuff then stay return to USA and do my last period and then fill in the N-400 and remain there till get the interview. All the time making sure Im in the US for a marked majority portion of the year to meet the N-400 requirements

[manyfudge 291]

2 hours ago, UKspouseUSwife said:

can get in next week I was planning to stay there from next week till March 28th then come back for few months to get a house ready to sell then return and do another 7-8 months in usa then come back to tie up more Uk stuf

As @Mike E says, you should be fine to return.  The record here was 9 years out of the US with expired card and green card renewal receipt.

 

You have a 10 year GC and I assume you were filing US tax returns (not that matters at the border so much) and you are flying from UK - you should be fine.

 

Do NOT sign i-407.

 

If you absolutely have to leave March 2024, I would file i-131 reentry permit as soon as you land and do the biometrics.

Make it for 2 years.

 

You don’t HAVE to use i-131 but it will make your life easier when you go back and forth.  Never leave again without i-131 field and biometrics done.

 

If you are a risk taker type, I would file for N400 at the 3 year mark.  Document and be truthful about your absences and make it clear that you reside in the US and were taking care of business in UK.   The danger here is that the N400 form  will look at  your last FIVE years.  So they may end up saying that you lost your GC.  
https://www.uscis.gov/sites/default/files/document/forms/n-400.pdf

page 7.

 

Less risky is to wait 5 years to apply.

 

 

 

Edited September 7, 2023 by manyfudge

[OldUser 7,010]

2 hours ago, UKspouseUSwife said:

Are you saying doing the following would jeopardize my chance of naturalisation in three years time after I have met the requirements of time in USA over the last few years?

 

Every time you travel now, you're at the risk of CBP issuing Notice to Appear (NTA) in attempt to strip you off your LPR status in the US.

 

The wisest thing is not to increase chances of this happening. If you're lucky to get into the US with your valid 10 year GC, just stay there until you naturalize.

 

I know you may have commitments back in the UK etc. Can your wife handle any business there for you?

 

Renouncing LPR, then applying from scratch can be super slow and confusing to US embassy / USCIS, which complicates your immigration history and increases chances of something going off the track.

[manyfudge 291]

2 hours ago, UKspouseUSwife said:

Everything we've read states "physical presence" and "continuous residence" refer to the LAST THREE YEARS PRIOR TO SUBMITTING the N-400 3 years

The form asks for 5 years of trips even though you need 3 years of residence.

 

 

 

Edited September 7, 2023 by manyfudge

[Mike E 11,741]

3 hours ago, UKspouseUSwife said:

Are you saying doing the following would jeopardize my chance of naturalisation in three years time

Indirectly. It will jeopardize your naturalization by jeopardizing your LPR status. If you get put into removal proceedings by CBP because of your travel pattern, I presume it will be more difficult to naturalize with a pending removal trial in immigration court, because naturalization is predicated on being an LPR. If the trial concludes your LPR status terminated sometime on or before September 6, 2023, I do not see how you can naturalize. I also see it as the least of your problems.

 

 

[SalishSea 17,980]

6 hours ago, UKspouseUSwife said:

you are not suggesting I get an ESTA I assume? I thought about changing my return flight to meet the ESTA 90 day?

How are you eligible for ESTA?  

[OldUser 7,010]

5 minutes ago, SalishSea said:

How are you eligible for ESTA?  

Not eligible.