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cc13

long story, previous k-1 now filing i-130

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Hello Folks,

Its been a while since I have been here. This site has been a tremendous resource in the past, so I thank you in advance for any input you may have.

Mods, if I have posted this in the wrong place, apologies, and kindly move it to where it should be.

 

My husband and I filed an i-129f in 2013, that was approved, were married December 2013, AOS approved, and filed for removal of conditions in early June of last year. (Which was approved, and he received his 10 year G.C) While it was pending, In late June, my husband went back to the UK for a two week trip for his eldest child's college graduation. Without going into too much detail, while visiting, a family emergency arose with his other child. He extended his trip by two weeks to deal with it. Upon his return home, it became clear he would have to go back to help her. It has not been easy, to say the least, I care for his children just as much as I do my own, and given the nature of the situation and finances he took a job, and secured a flat over there. I have been over to visit a few times (not as much as I would like), but my own children and job, prevented me from many extended trips away. It is with great relief, I can say thankfully my step daughter is doing much better, and we can now focus on getting our lives back on track.

Knowing it would likely not be approved, (but of course it was worth a shot, to avoid going through the whole process all over again) he made an appointment with the London Embassy to file a DS-117.
His appointment for the preliminary interview was this morning. After reviewing the application, my husband said the consular officer said he was very sorry, and wished there was more he could do to help. He was given back his Passport, Green Card, paperwork, and was told I would have to file an I-130.

I will be starting on the I-130 ASAP, which I am sure I will have questions about later, but for now it seems straight forward enough.

My questions are these:

 

I was under the impression if his DS-117 was denied, it means they determined he had abandoned his residency, and would void or take his green card. Given that they gave it back to him, does that put him in some sort of limbo?

Is it necessary to return it prior to filing the i-130?

Or have they canceled it in the system, and physically returning it is not necessary?

 

I had read elsewhere, that once residency is abandoned, one could re apply for an ESTA.
Is this correct?

And if so, would he be able to visit for Christmas and New Years, while the i-130 is pending?

 

Thanks to anyone who took the time to read this, and look forward to any answers or input any of you may have.

 

cc
 

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never mind. I thought lack of replies was actually due to, me not reading... noob back etc. 
I waded through over 50 pages of 'yes you can visit' pinned at the top, (proper thanks to hotter otter for doing that. but now my eyes, and brain hurt) and yeah. no actual definitive answer, so I will go visit, vs. him visiting here, and just do this once more, whilst calling USCIS on Monday what he should do with the current green card. 
best of luck to everyone. 
splologies. 

cc

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Assuming his green card isn't expired, I think I would give reentry a shot, but do it through Dublin, so he'll get a yes or no on that side of the pond.  If he's cleared to enter, then all is well. Maybe get a separate round trip ticket to Dublin and a round trip to US airport that is either refundable or not too expensive to change.  If he's denied entry in Dublin, file the I-130.  Allowing a green card holder to re-enter is always a judgment call of a CBP officer at the POE, not a Consular officer in a Consulate.

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The embassy returned his green card because they don't have the authority to take it from him. He can either abandon his residency himself or an immigration judge can decide he has abandoned it, but not the embassy personnel. 

 

As has been mentioned already, he should give it a shot. It's not up to the embassy to determine whether he has abandoned his residency or not. 

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7 hours ago, pushbrk said:

Assuming his green card isn't expired, I think I would give reentry a shot, but do it through Dublin, so he'll get a yes or no on that side of the pond.  If he's cleared to enter, then all is well. Maybe get a separate round trip ticket to Dublin and a round trip to US airport that is either refundable or not too expensive to change.  If he's denied entry in Dublin, file the I-130.  Allowing a green card holder to re-enter is always a judgment call of a CBP officer at the POE, not a Consular officer in a Consulate.

thank you for the replies.
Yes, his card is valid for 10 years. 
Interesting, and maybe worth a trying. Certainly less expensive should he be allowed in. 

 

To answer NigeriaorBust,  we have filed joint taxes, including his income over there, have joint bank accounts, he makes car payments on our car here, credit card payments etc.  

Though, if he is denied entry could that that not cause potential problems with the I-130?  I have to go back and check, but I think it asks 'have you ever been denied entry to the U.S. ?'

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4 minutes ago, cc13 said:

thank you for the replies.
Yes, his card is valid for 10 years. 
Interesting, and maybe worth a trying. Certainly less expensive should he be allowed in. 

 

To answer NigeriaorBust,  we have filed joint taxes, including his income over there, have joint bank accounts, he makes car payments on our car here, credit card payments etc.  

Though, if he is denied entry could that that not cause potential problems with the I-130?  I have to go back and check, but I think it asks 'have you ever been denied entry to the U.S. ?'

It asks but being denied entry for this reason has no impact on the process either way.

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1 hour ago, cc13 said:

thanks! 

definitely will be looking at flight options tonight. :)

One complicating factor you need to be aware of:  While they returned the green card, they also entered information on the denial of the DS -117 in the computer system.  Immigration offices at the Port of Entry will be able to see that the SB-1 Returning Resident visa was denied.  Just saying it's an additional factor to be considered.  

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16 hours ago, jan22 said:

One complicating factor you need to be aware of:  While they returned the green card, they also entered information on the denial of the DS -117 in the computer system.  Immigration offices at the Port of Entry will be able to see that the SB-1 Returning Resident visa was denied.  Just saying it's an additional factor to be considered.  

How certain are you the Homeland Security people will see a recent action by Dept. of State?  It's certainly possible.  Of course, no lies should be told, but depending on the questions, which could be few, if any, there's nothing to deal with.

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On ‎11‎/‎3‎/‎2017 at 7:58 PM, cc13 said:

Hello Folks,

Its been a while since I have been here. This site has been a tremendous resource in the past, so I thank you in advance for any input you may have.

Mods, if I have posted this in the wrong place, apologies, and kindly move it to where it should be.

 

My husband and I filed an i-129f in 2013, that was approved, were married December 2013, AOS approved, and filed for removal of conditions in early June of last year. (Which was approved, and he received his 10 year G.C) While it was pending, In late June, my husband went back to the UK for a two week trip for his eldest child's college graduation. Without going into too much detail, while visiting, a family emergency arose with his other child. He extended his trip by two weeks to deal with it. Upon his return home, it became clear he would have to go back to help her. It has not been easy, to say the least, I care for his children just as much as I do my own, and given the nature of the situation and finances he took a job, and secured a flat over there. I have been over to visit a few times (not as much as I would like), but my own children and job, prevented me from many extended trips away. It is with great relief, I can say thankfully my step daughter is doing much better, and we can now focus on getting our lives back on track.

Knowing it would likely not be approved, (but of course it was worth a shot, to avoid going through the whole process all over again) he made an appointment with the London Embassy to file a DS-117.
His appointment for the preliminary interview was this morning. After reviewing the application, my husband said the consular officer said he was very sorry, and wished there was more he could do to help. He was given back his Passport, Green Card, paperwork, and was told I would have to file an I-130.

I will be starting on the I-130 ASAP, which I am sure I will have questions about later, but for now it seems straight forward enough.

My questions are these:

 

I was under the impression if his DS-117 was denied, it means they determined he had abandoned his residency, and would void or take his green card. Given that they gave it back to him, does that put him in some sort of limbo?

Is it necessary to return it prior to filing the i-130?

Or have they canceled it in the system, and physically returning it is not necessary?

 

I had read elsewhere, that once residency is abandoned, one could re apply for an ESTA.
Is this correct?

And if so, would he be able to visit for Christmas and New Years, while the i-130 is pending?

 

Thanks to anyone who took the time to read this, and look forward to any answers or input any of you may have.

 

cc
 

https://cliniclegal.org/sites/default/files/9 Foreign Affairs Manual 42.22 Notes.pdf

 

Please read through this carefully.  He now has a posted (L) "Lookout" in his file.

 

Lowest risk:  Voluntarily surrender the green card at the consulate and re-file. 

 

Whether he can visit or not is up to the agent at the immigration counter at POE.  I would view it as highly unlikely.

 

Trying to successfully enter on the green card without going through court proceedings, which you will probably and eventually win but can be a long protracted process is also unlikely.

 

The consulate, as noted in the above link, cannot take his green card, only USCIS can.  So they have to give it back.  Using it at this point however will be very, very risky.

Edited by Nitas_man

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15 minutes ago, pushbrk said:

How certain are you the Homeland Security people will see a recent action by Dept. of State?  It's certainly possible.  Of course, no lies should be told, but depending on the questions, which could be few, if any, there's nothing to deal with.

I attached the manual for the OP to read.  Please familiarize yourself with that manual related to returning residents. 

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4 hours ago, pushbrk said:

How certain are you the Homeland Security people will see a recent action by Dept. of State?  It's certainly possible.  Of course, no lies should be told, but depending on the questions, which could be few, if any, there's nothing to deal with.

The information is replicated within minutes.  Since he will likely be subjected to some questioning due to his extended absence, they will see the information if they run his green card information, which IMO they will do..  Just think it's something they need to be prepared for.

Edited by jan22

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4 hours ago, Nitas_man said:

https://cliniclegal.org/sites/default/files/9 Foreign Affairs Manual 42.22 Notes.pdf

 

Please read through this carefully.  He now has a posted (L) "Lookout" in his file.

 

Lowest risk:  Voluntarily surrender the green card at the consulate and re-file. 

 

Whether he can visit or not is up to the agent at the immigration counter at POE.  I would view it as highly unlikely.

 

Trying to successfully enter on the green card without going through court proceedings, which you will probably and eventually win but can be a long protracted process is also unlikely.

 

The consulate, as noted in the above link, cannot take his green card, only USCIS can.  So they have to give it back.  Using it at this point however will be very, very risky.

Although most of the linked information is still correct, the Foreign Affairs Manual (FAM) has been updated.  The correct link and information is now at https://fam.state.gov/fam/09FAM/09FAM050207.html.  (That's why I always say it's better to go to a .gov source than a third party copy, to make sure you have the most current information.)

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14 minutes ago, jan22 said:

Although most of the linked information is still correct, the Foreign Affairs Manual (FAM) has been updated.  The correct link and information is now at https://fam.state.gov/fam/09FAM/09FAM050207.html.  (That's why I always say it's better to go to a .gov source than a third party copy, to make sure you have the most current information.)

 

You are correct and thank you.

 

The .gov one you posted is actually the one we used to navigate SB-1.  The one I grabbed (third-party) I read through and checked for this line:

 

 If the application is denied, enter an "L" Lookout in INK containing scanned copies of Form DS-117 and all supporting documents, and also enter notes supporting the denial decision.

 

Which is the important one that I wanted to make sure the OP knew.  It hasn't changed.  That's a problem, because now the case file (immigration file) is electronically flagged that a CO has made a determination of abandonment. 

I think they'll eventually win the court case, but I think at entry they'll either offer him a chance to surrender and turn around at the airport or give him a notice to appear before an immigration judge to plead his case.  The court case is going to take longer than a new petition, which is why I do believe the OP should re-file.  I do not believe they will let him in after this much time.  Setting up a residence and taking a job overseas is specifically listed in the "evidence of abandonment" section.

 

We did it a few years ago.  Abandoned a green card, waited a few weeks, and filed a new petition.  Wasn't worth the hassle to fight with the immigration system when all we wanted to do was go home, buy a house, and settle down.

Edited by Nitas_man

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