I-131 Re-entry Permit - To Return to US Within 12 Months Due to 16 Month Average Processing Time or Not?

[puma1552 5]

I'm a US citizen.  My wife is a Japanese citizen and a 10 year green card holder.  She's lived in the US since 2011.  She just renewed her 10 year green card last May/June, so it's good for another ~9 years.  We also have a toddler son who is a dual US/Japanese citizen.

 

Last summer, she decided she wanted to go back to Japan for school, for ~2 years and then come back to the US after that.  After her green card renewal was complete, we filed I-131 for a re-entry permit.  I-131 timeline is:

 

7/4/23: Fingerprint fee accepted

7/12/23: Case updated to show fingerprints were taken (biometrics re-used)

 

Silence on the case since.  Being a re-entry permit, we knew biometrics had to be completed before she could leave the US, so we waited for that.  She left the US on 9/12/23 (with our son).  I remained in the US.  So all is well and proper up to this point.  Also, she has maintained ties here while gone - still married to me, we are still filing joint tax returns with her name, she renewed her Minnesota cosmetology license online while she was over there, and she renewed her Minnesota driver's license right before she left.  Her name is also on all the bills, etc.

 

Our preferred path is for her to just remain in Japan doing her thing until she's ready to come home, obviously sometime after a re-entry permit is in hand.  However, average processing time for a re-entry permit is currently 16 months, and I know she technically can only enter the US no questions asked without hassle on her green card for 12 months from the date she left.  So if USCIS doesn't approve the re-entry permit before 9/12/24 (which seems unlikely), then we are in a gray area where her green card is technically not valid for entry (though she'd still be an LPR so I know CBP can't strip her actual status, only a court can etc.) but where we also don't yet have a re-entry permit.  I don't have any reason to believe the re-entry permit would be denied, but if for some reason it were, then we could have some real hassles.

 

So the question is, does she really need to plan a short trip/visit to the US before 9/12/24 just to reset that 12 month clock on her green card being valid for re-entry without hassle just to be safe until a decision is made on the re-entry permit?  It seems kind of absurd that we should have to spend time and money on a short trip to the US (probably Guam since it's closest to Japan) just because USCIS can't process a re-entry permit within the 12 month period in which a green card is valid for re-entry while we wait for them to make a final decision on the re-entry permit.  Finances are tight with her in school and a short trip abroad with a 2 year old is a hassle we'd prefer to avoid.

 

So, should she take a trip back to the US before 9/12/24 to be safe or just wait out the re-entry permit decision in Japan without re-entering the US at all?  All things being done correctly with the application thus far, could they deny the re-entry permit simply because by the time they get around to processing her application (say, ~16 months) she will have been outside the US for that long without returning and they'd cite that alone as a reason for denial?

Edited June 7 by puma1552

[Boiler 45,445]

Why did she not naturalise?

[puma1552 5]

6 minutes ago, Boiler said:

Why did she not naturalise?

 

Japan doesn't allow dual citizenship after age 20 and she doesn't want to give up her entire Japanese nationality/passport and all the rights that come with it just to basically be able to also vote here; I wouldn't either.

Edited June 7 by puma1552

[Crazy Cat 41,811]

12 minutes ago, puma1552 said:

 Not all who live in the US long term desire to be US citizens, for various reasons.

True.  But they must, then, tolerate all the inconveniences of being a Green Card holder.  What is she going to do if the I-131 is denied? Seems to me that a trip back to the US would alleviate some of the stress you now face. 

[puma1552 5]

25 minutes ago, Crazy Cat said:

True.  But they must, then, tolerate all the inconveniences of being a Green Card holder.  What is she going to do if the I-131 is denied? Seems to me that a trip back to the US would alleviate some of the stress you now face. 

 

That's really the crux of why this thread exists and why I'm asking that question about a trip back within 12 months and if it's really necessary or not.  USCIS doesn't provide explicit guidance either way.

 

USCIS doesn't appear to provide an explicit extension of the 12 month green card travel validity period for extended re-entry permit processing times (like they now do for extended processing times on green card renewals via the 24 month I-797), but USCIS also doesn't explicitly state that one must re-enter the US within the 12 month period if the re-entry permit is still processing.

 

The only reason I can imagine it would be denied is if she's out of the country for 12+ months by the time they process it and they cite that alone as reason for denial, but I don't know if that's a realistic concern since she followed the proper procedures and left the US after biometrics which USCIS says is perfectly acceptable to do.  Seems strange they would say "go ahead and leave while we process it now that biometrics are done," and then later say, "well it turns out that even though we said you could leave, since it took us so long to process it on our end, we are going to now penalize you and deny the application because you were gone 12+ months while we were taking 12+ months to process the application."

 

I see other threads of people gone for years, not following proper procedures, etc., and being let back in with no/minimal hassles and I look at our case and see procedures thus far being followed correctly, tons of strong ties to the US, etc., so it has me wondering if it's really necessary for her to load up a 2 year old for an international trip for just a few days or not.

 

This seems like a pretty common situation where it should be somewhat easy to find people who have been in the same position.

Edited June 7 by puma1552

[puma1552 5]

For what it's worth, I just called USCIS and asked the agent about if she needs to return within 12 months.  This particular agent said it's "a difficult question to answer and largely unknown" (basically confirming USCIS themselves have no real policy/explicit guidance), but basically yes/probably.  I then confirmed if a short visit and then leaving again is ok and he said no.  He said if you're gone for 10 months, you need to stay in the country for 10 months before you can leave again or it doesn't count.  Basically, you would need to stay in the country for at least as long or longer than you were gone or the trip is pointless/does nothing for you.  So according to that guy, re-entering the US for a few days or a couple weeks and going back to Japan wouldn't do anything for us.  Doesn't make any sense at all given the nature/purpose of re-entry permits and the inherent function of them being to allow you to re-enter after extended stays abroad.

 

I take everything Tier 1 agents say with a grain of salt.  I know from experience I can call 3x and get 3 different answers to the same question, so it is what it is, but for this question, I guess that's the flavor of the day from the Tier 1 agent.

Edited June 7 by puma1552

[Crazy Cat 41,811]

15 minutes ago, puma1552 said:

 Doesn't make any sense at all given the nature/purpose of re-entry permits and the inherent function of them being to allow you to re-enter after extended stays abroad.

Having an approved re-entry permit makes all the difference, it seems. 

Edited June 7 by Crazy Cat

[Crazy Cat 41,811]

***Non-contributory comment removed***

 

[puma1552 5]

9 minutes ago, Crazy Cat said:

Having an approved re-entry permit makes all the difference, it seems. 

 

Truncating an extended stay abroad because a re-entry permit hasn't been approved completely defeats the purpose of bothering to apply for a re-entry permit to begin with.

 

I'm done here though.  Not getting any help or useful replies, yet getting my own comments deleted for being 'non contributory.'  Have fun, no need for me to update with the outcome later, I'll just do what I have to and that'll be that.  Useless website.

Edited June 7 by puma1552

[Crazy Cat 41,811]

5 minutes ago, puma1552 said:

 

Truncating an extended stay abroad because a re-entry permit hasn't been approved completely defeats the purpose of bothering to apply for a re-entry permit to begin with.

 

I'm done here though.  Not getting any help or useful replies, but getting my comments deleted for being 'non contributory.'  Have fun, no need for me to update with the outcome later, I'll just do what I have to and that'll be that.  Useless website.

Good luck.  Stick around a little longer.  Maybe others will provide answers you find helpful.  

Edited June 7 by Crazy Cat

[OldUser 6,608]

46 minutes ago, puma1552 said:

 

Truncating an extended stay abroad because a re-entry permit hasn't been approved completely defeats the purpose of bothering to apply for a re-entry permit to begin with.

 

In theory, you're only supposed to leave the US for extended stay after I-131 is approved. Not after applying, not after biometrics. But after you have approval. This almost guarantees you won't have issues.

 

USCIS cannot speak for CBP, and vice versa. So no wonder why USCIS cannot give definitive answer.

[jan22 3,049]

5 hours ago, OldUser said:

In theory, you're only supposed to leave the US for extended stay after I-131 is approved. Not after applying, not after biometrics. But after you have approval. This almost guarantees you won't have issues.

 

USCIS cannot speak for CBP, and vice versa. So no wonder why USCIS cannot give definitive answer.

This is not accurate.  There is an established process where, after biometrics, you can leave the US and, on your application form, request to pick up the issued permit at the Embassy/Consulate nearest you.  This process would not exist if you weren’t supposed to leave until the permit is issued.  It is described in USCIS literature at: https://www.uscis.gov/sites/default/files/document/guides/B5en.pdf.

Edited June 7 by jan22

[OldUser 6,608]

12 minutes ago, jan22 said:

This is not accurate.  There is an established process where, after biometrics, you can leave the US and, on your application form, request to pick up the issued permit at the Embassy/Consulate nearest you.  This process would not exist if you weren’t supposed to leave until the permit is issued.  It is described in USCIS literature ar  https://www.uscis.gov/sites/default/files/document/guides/B5en.pdf.

Just because USCIS says you can (on this outdated leaflet from 2013) doesn't mean you should.

 

1) What happens if your I-131 is denied while you're overseas?

2) How do you convince CBP you didn't abandon your residency if you were out for too long?

 

The most solid proof to use for coming back after long absense would be presenting reentry permit. Receipt for I-131 is simply not the same. CBP doesn't know whether you'd be granted I-131 or not in the future. And while you don't have it, what makes them honor it? Legally, nothing (as far as I understand).

 

I can see a possibility of getting NTA or I-407 upon return if you don't have I-131 approved. Not sure how common this is, but I'll research more...

 

 

Edited June 7 by OldUser

[jan22 3,049]

1 minute ago, OldUser said:

Just because USCIS says you can (on this outdated leaflet from 2013) doesn't mean you should.

 

1) What happens if your I-131 is denied while you're overseas?

2) How do you convince CBP you didn't abandon your residency if you were out for too long?

 

The most solid proof to use for coming back after long absense would be presenting reentry permit. Receipt for I-131 is simply not the same. CBP doesn't know whether you'd be granted I-131 or not in the future. And while you don't have it, what makes them honor it? Legally, nothing (as far as I understand).

 

 

Even though the leaflet is 2013 doesn’t mean it isn’t accurate information.  This has been an established part of the re-entry permit process since at least the early 1990’s and is still a part of the process.  
 

If, however unlikely it would be, the re-entry permit is denied, the individual would go through the same process discussed here many times — return to the US, be interviewed at the POE, explain the absence (and, in this case, show the I-131 receipt), and get admitted to the US.  The worst case scenario would be a referral to an immigration judge.

[OldUser 6,608]

7 minutes ago, jan22 said:

Even though the leaflet is 2013 doesn’t mean it isn’t accurate information.  This has been an established part of the re-entry permit process since at least the early 1990’s and is still a part of the process.  
 

If, however unlikely it would be, the re-entry permit is denied, the individual would go through the same process discussed here many times — return to the US, be interviewed at the POE, explain the absence (and, in this case, show the I-131 receipt), and get admitted to the US.  The worst case scenario would be a referral to an immigration judge.

If you're willing to take the risk and potentially deal with CBP / immigration court should it come to that, you're more than welcome.

Edited June 7 by OldUser