Should stepdaughter surrender greencard?

[NYPeach 13]

Hi all, advice sorely needed.

My stepdaughter came to visit us in the US from the UK a few years back when she was 17, was a mess b/c of the situation at home with her mother and stepfather. She ended up overstaying the VWP, I filed for her greencard a few months after she turned 18 (because we had no money before then), and the overstay was forgiven. (As a matter of fact she got her greencard with no interview, believe it or not).

She lived here for 3 years. Then she went back to visit her mother, made amends, and decided to move back to the UK to try to work things out with her family over there. She did not file any paperwork, just up and left.

She's 21 years old and has now been out of the country for more than a year. Of course she is now homesick for the US (is your head spinning yet?) and wants to come back to visit.

What should I advise her? I think she should surrender her greencard and apply for a tourist visa. She left for over a year, she has previously overstayed while visiting on the VWP. I don't see much other choice. She is going to want to go back to the old days of visiting the US a few times a year.

Am I missing anything? This kid is obviously a confused mess but I'm trying to be supportive. Of course, she's not even aware of any this. She just moved without a thought to her immigration status. She thinks she's coming at Christmas without a care. I want to give her the best advice.

Thanks for any help.

Edited August 19, 2012 by Peachbythebeach

[canadian_wife 1,823]

Ugh, what a situation!

What she shouldn't do is board a plane without knowing her immigration status. She's overstayed the VWP and with a green card, she clearly has immigrant intent.

She (not you or her mother) needs to call the US consulate and get some advice about what to do.

If she does book a flight, I suggest she go through a pre-clearance site in case something happens and she is denied entry.

Good luck

[Nich-Nick 3,354]

What should I advise her? I think she should surrender her greencard and apply for a tourist visa. She left for over a year, she has previously overstayed while visiting on the VWP. I don't see much other choice. She is going to want to go back to the old days of visiting the US a few times a year.

.

Here's what the embassy London says. Other embassies say much the same. Some say apply for a tourist visa and turn in the I-407 at the same time.

London version. http://london.usembassy.gov/dhs/uscis/abandon.html

Do you think there is any chance she may have a change of heart and wish to live in the US again? It would be very difficult now that she is 21 to start anew to get a greencard. It's several years wait. Perhaps a good attorney could build a case that she did not abandon through fault of her own.

Info on that http://london.usembassy.gov/returning_resident_apply.html

Something to think about before she formally abandons the card.

[NYPeach 13]

Thanks both for your replies.

I don't know if she is considering coming back, but even if she was, I would imagine that it wouldn't be for another year or so. I don't see her being the type to retain an immmigration attorney and go through the returning resident hoops. She (obviously) doesn't really face problems head on. That's why I was thinking this was the easiest option and would still allow her to visit her dad and me on a regular basis like she did previous to all this.

Am I correct that she can no longer use the VWP since she overstayed, even though part of the overstay was when she was younger than 18?

Thanks again for your help.

[Nich-Nick 3,354]

Thanks both for your replies.

I don't know if she is considering coming back, but even if she was, I would imagine that it wouldn't be for another year or so. I don't see her being the type to retain an immmigration attorney and go through the returning resident hoops. She (obviously) doesn't really face problems head on. That's why I was thinking this was the easiest option and would still allow her to visit her dad and me on a regular basis like she did previous to all this.

Am I correct that she can no longer use the VWP since she overstayed, even though part of the overstay was when she was younger than 18?

Thanks again for your help.

She can go online and answer the ESTA questions once she gets confirmation of the I-407 and see if it allows it. Worth a try because if the tourist visa is rejected, then no VWP for a while. Some people eventually get accepted by ESTA after being denied a tourist visa. She would need a lot of proofs to ties to the UK to present at a B1B2 visa interview...job, school, lease, bills, utilities, bank account, phone contract ..those type of things. Also take the greencard return paper to show she really doesn't want to live in the US. They don't hand those out easily so being well-prepared is essential. She needs to get on this if she wants to get something for the holidays.

[Hypnos 6,576]

Minors do not accumulate illegal presence until they turn 18, so provided she had less than 180 days of illegal presence (i.e. from the day she turned 18 until the day her I-485 application was accepted by USCIS) then she has not incurred a ban. Note that any ban does not magically go away once you obtain a green card, it is simply not enforced. Should you lose your permanent resident status then it is my understanding that the ban is in play once again, and this is something to consider.

180 days of illegal presence would give her a 3-year ban and 365 days of illegal presence would give her a 10-year ban, which starts from the moment she departs the US.

Another issue is that she has been outside of the US for more than a year and does not hold a re-entry permit (obtained by filing an I-131 before you leave) and so cannot use her green card to gain entry back into the US. That option is off the table.

You should look into exactly how much illegal presence she accumulated before her green card application was initially accepted (not approved, just accepted, since filing an I-485 puts an illegal alien back into a legal status until their application is finally adjudicated) and take it from there. In short, if you applied for her green card more than six months after she turned 18 then you are going to have a problem.

Edited August 20, 2012 by Hypnos

[NYPeach 13]

Hypnos, thanks so much for the detailed reply.

I have to check the paperwork but I know her overstay was less than 180 days because we were aware of the ban. It was probably in the area of 30 days.

So as you said her greencard option is off the table. I know she will want to visit several times in the next few years which is why I'm thinking surrender the greencard and move on from there.

Even though she doesn't have the ban, I was under the impression she couldn't travel on the VWP again b/c of any overstay. Am I wrong?

[Hypnos 6,576]

I believe that any previous violation of the VWP means that you cannot use it again.

"Officially" surrendering her green card by filing an I-407 and then filing for a B-2 visa would probably be what she would have to do.

With a previous overstay and previous immigrant intent, obtaining a B-2 is going to be a tough sell. She would need to show significant ties to the UK and as a younger person this can often be a challenge. Ordinarily it wouldn't be an issue, but with her previous overstay and green card, it could be.

If she does nothing and tries to enter the US using either her green card or the VWP she will almost certainly be denied entry and put on the next flight back to the UK.

Edited August 20, 2012 by Hypnos

[NYPeach 13]

Thanks again. I'm of the same opinion, try for a B2 visa with lots of proof of why an overstay won't happen again and hope for the best.

If not, it's not the end of the world, we're just going to have to visit her in the UK instead. And maybe she'll learn a life lesson about being impulsive and making life-altering decisions without looking at the consequences first.