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Need help regarding abandoned Green Card/VWP entry

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My wife of 13 years has a Permanent Resident Card that expires in 2016. We came back to Japan to care for her grandparents but are now free to return home to the U.S. with our two children both of whom are U.S. citizens. While at the consulate reporting the birth of our son, we were informed that my wife's green card would be considered abandoned automatically. This was news to us as we had plans to return home permanently in 3-4 months time.

She never obtained a Re-Entry permit and are not going to waste time filing an SB-1. My question is wouldn't she be able to enter the U.S. under VWP and Adjust Status from there? From my research online it seems to me that an immediate family member is indeed allowed to Adjust status if they are already in the U.S. Can anybody clarify this for me?

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did you stay more then six months?

I thought I had included that in my original post but see now that I failed to do so. Sorry about that! We have been in an out of the U.S. a dozen or so times but this time we have been out just under two years. We should have applied for the re-entry but it's too late for that now.

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Entering the US on a nonimmigrant visa (or the VWP) with the preconceived intent to remain and adjust status is considered visa fraud.

If your wife has been outside the US for at least a year then yes, the presumption in law is that she abandoned her residency. In that situation you would need to re-file for her. It will take around a year to complete the process.


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Entering the US on a nonimmigrant visa (or the VWP) with the preconceived intent to remain and adjust status is considered visa fraud.

If your wife has been outside the US for at least a year then yes, the presumption in law is that she abandoned her residency. In that situation you would need to re-file for her. It will take around a year to complete the process.

Fair enough. Thank you for taking the time to help me. We will proceed with formally abandoning the Permanent Resident Card at the local consulate and applying again for a spouse visa.

I was just confused by reading that immediate relatives who enter on VWP may adjust their status while in the U.S. I can't think of relatives visiting the U.S. without the intention of staying and then on a whim filing to Adjust status and staying for a long period of time. Something isn't adding up for me.

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It's somewhat of a nebulous grey area, but is legal.

Consider this a rule of thumb:

- Looking into this possibility after you have already entered the US and are exploring your options = OK.

- Looking into this possibility from overseas and perhaps trying to do an end-run around processing times for an immigrant visa (not saying this is what you are doing, just making the point) = not OK.

The first option is legal and is discussed here regularly. The second is not, and threads planning this will be locked here.

Edited by Hypnos

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AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

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Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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It's somewhat of a nebulous grey area, but is legal.

Consider this a rule of thumb:

- Looking into this possibility after you have already entered the US and are exploring your options = OK.

- Looking into this possibility from overseas and perhaps trying to do an end-run around processing times for an immigrant visa (not saying this is what you are doing, just making the point) = not OK.

The first option is legal and is discussed here regularly. The second is not, and threads planning this will be locked here.

Thanks again. Here was my original thought. If she didn't turn in her Green Card and we flew to the U.S. with our two kids there is a slight chance that she would be just let in. Not likely without some explaining but perhaps. We have been out of the U.S. for up to a year in the past and were always trutthful explaining that we are indeed planning to return to the U.S. permanently in the future. We were always able to be let in. But this time a considerable amouont of time has passed.

What is the typical outsome for a situation like this? In this instance would they still let her in but default to letting her in under VWP? I am quite certain that we are going to just file for another spouse visa from Japan but I am just curious. Had we not been told at the consulate that her green card is probably considered abandoned, we would have left in July as scheduled and turned up as we have in the past. I feel like we either dodged a bullet or in the end we would have arrived as planned and been tasked with some extra paperwork.

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If she tries to enter on her green card, the most likely result would be ending up in immigration court, with CBP asking an immigration judge to formally revoke her green card (and then deport her).

At the airport they would likely ask her to surrender it voluntarily (this is easier for them). If she refused then they would probably issue her a Notice To Appear before an IJ. It's possible she would be held in CBP custody until the hearing, but more likely she would be released on her own recognizance.

If she tries to enter on the VWP then there is no guarantee she would be admitted, especially with a US citizen spouse and two US citizen children in tow. Their first thought would be that she intended to remain and adjust status through you.

Edited by Hypnos

Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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Time to file new I-130.


Removal of Conditions Journey

3/3/2009 - Removal of conditions - sent off packet to CSC

3/5/2009 - I-751 received in CSC

3/9/2009 - Check cashed

3/20/2009 - Biometrics notice received (no NOA1)

4/2/2009 - Biometrics

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4/30/2010 Yellow letter received and info from USCIS mil line they are working on my interview letter (6/17 appt)

5/1/2010 Text and email interview letter sen

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If she tries to enter on her green card, the most likely result would be ending up in immigration court, with CBP asking an immigration judge to formally revoke her green card (and then deport her).

At the airport they would likely ask her to surrender it voluntarily (this is easier for them). If she refused then they would probably issue her a Notice To Appear before an IJ. It's possible she would be held in CBP custody until the hearing, but more likely she would be released on her own recognizance.

If she tries to enter on the VWP then there is no guarantee she would be admitted, especially with a US citizen spouse and two US citizen children in tow. Their first thought would be that she intended to remain and adjust status through you.

Not legal advice, but if she never gave up the intention to live in the US and this was a temporary time to take care of her grandparents, then the re-entry in July is legal bona fide use of the green card from her point of view*. So if CBP takes her to an IJ and she has enough to prove that she never abandoned US residence she could (1) fight CBP of (2) acknowledge unintentional abandonment of green card and file immediately for AOS for IR-1 in front of the judge. But this seems like something that should be verified with a lawyer - I always thought that CBP just refused entry.

But in your situation, it seems to me that it's easier to forfeit this green card, apply for a new visa and use the VWP for temporary visits while she waits for the new green card to be issued.

*Don't know if this theory holds given that the consulate already informed her she lost her green card, though.


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Can the OP do DCF in Japan?


*The material presented is intended for general information only and does not constitute legal advice*

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12/10/2013 -- I-130s NOA1 Hard copies received from VSC                                         12/20/2013 -- I-129F NOA1 Hard copy from VSC           

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06/16/2014 -- I-130s RFE Response received                                                              07/11/2014 -- I-129F NOA2 email (207 days)

09/25/2014 -- I-130 NOA2 Emails 290 days                                                                 07/16/2014 -- I-129F NOA2 Hard copy received and sent to NVC        

NVC - K3 Wife/K4 Daughter

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07-31-2014 -- NVC case number assigned

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08-07-2014 -- Received email interview letter and packet IV

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Thanks again. Here was my original thought. If she didn't turn in her Green Card and we flew to the U.S. with our two kids there is a slight chance that she would be just let in. Not likely without some explaining but perhaps. We have been out of the U.S. for up to a year in the past and were always trutthful explaining that we are indeed planning to return to the U.S. permanently in the future. We were always able to be let in. But this time a considerable amouont of time has passed.

What is the typical outsome for a situation like this? In this instance would they still let her in but default to letting her in under VWP? I am quite certain that we are going to just file for another spouse visa from Japan but I am just curious. Had we not been told at the consulate that her green card is probably considered abandoned, we would have left in July as scheduled and turned up as we have in the past. I feel like we either dodged a bullet or in the end we would have arrived as planned and been tasked with some extra paperwork.

Seem this time you were gone is closer to 2 yrs. Travelling on VWP when the consulate

informed you the GC had been abandoned will get her entry denied unless she runs

into a real nice CBP...now trying to enter as a family will speak for itself "we are returning

home."..this the grey area where a misrepresentation of visit turning into AOS can create

more problems...I say speak to an atty, but plan to file I 130 with explanation of the

reasons and proof she stayed out for so long, USCIS don't care about info you never

had I would contact my congress-person & ask for an expedite with application , they can

only say yes or no.....The fact they could tell you the GC is abandoned its in the data-base

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Consulate can not take away your GC nor can they at the PoE.

Very very unusual to be detained.

So you enter with a GC, getting grief worst they can do is give you a notice to appear in front of an IJ.

4 years later, maybe longer, you appear in front of an IJ who wonders why his time is being wasted as yes he can take it away but yes you can just file again


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Can the OP do DCF in Japan?

There needs to be a USCIS field office within a US embassy in the foreign country for DCF to be an option. You can find a list of international USCIS offices here: http://www.uscis.gov/about-us/find-uscis-office/international-immigration-offices

There is no USCIS office in Japan.


Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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