Confused about ROC and Reentry permit

[ajhigh 2]

As I've mentioned in other threads, my husband (USC) and I (LPR - green card received September 2014) are moving to Europe in April 2015 for a temporary (2 year) work assignment. We will have plenty of proof (including from his employer) of our intention to return permanently to the US after the assignment ends.

I'm confused about how re-entry permits interplay with removal of conditions.

I'm filling out the application for a re-entry permit. I intend to send this off soon, and had hoped that the 2 year permit would cover me for the entire period we are away.

Reading the instructions for I-131, however, I see that "A REP issued to a conditional resident is valid for 2 years from the date of issuance, or to the date the conditional resident must apply for removal of conditions, whichever date comes first."

So...assuming I get an REP around April 2015, that would mean it will only be valid until I need to come back to the US to remove conditions - between July-Sep. 2016. But at that time, I'll still have around 8 months of our expat assignment still to go - i.e. husband and kids will be in Europe.

Sorry if this should be self-evident, but is this basically how it works?

- get REP, valid until Sep. 2016 (when 2 year conditional green card expires)

- up to 90 days before expiry, send application for ROC (which I can do from Europe?)

- make sure I apply for ROC early enough so that when biometrics notice turns up, my REP/green card are still valid and I can return to the states to do biometrics

- ....then what? Do I need to stay in the states until ROC is adjudicated? Because I heard that can be a long time - and as I said, family will be in Europe until April 2017. Or can I go back to Europe and wait for the 10 year card to show up (can it be delivered to the embassy in Switzerland?)

The guide says that once filing the application to remove conditions, "You will receive a notice of receipt for the form stating that "Your alien card is extended one year - employment and travel authorized". So I guess I'm confused how that works when I'll have been out of the country (with a re-entry permit) - would I need to get a second re-entry permit if I had to come back to the US before my 10 year card turns up? Or a returning immigrant visa?

Thanks for your help!!

Edited December 16, 2014 by ajhigh

[Boiler 43,429]

They are really separate issues.

Abandonment is a complicated issue, most Immigration Lawyers are not familiar with the ins and outs, as it is a Company move they should be providing legal access.

[ajhigh 2]

OK, I've figured out the answer to my own question - called Tier 2 and read through relevant sections of acts/AFM.

Here's my summary, just in case any of my fellow immigration law nerds want to chime in/correct me, or if it is of use to anyone else in my situation (applying for REP, leaving country for more than one year, plans to be residing overseas when time to remove conditions).

[Notes based on discussion with Officer ***, 12/16/14, 3.31 - I needed to make some inferences as at times he was not completely clear - see separate memo of phone conversation]

Re-entry permit (REP) will be valid until September 4 (date of conditional green card expiration).

- ROC can be filed from 6 June 2016 (T-90 days)

- no requirement to be physically present in US at time of filing

Ordinarily, it is possible to apply for ROC from outside the US, and have an "overseas hold" placed on the application such that petitioner does not need to return to US for biometrics.

However, this would not be possible in case of someone who has already been outside of the US for more than a year (i.e. assumption of abandonment) and has no REP (which automatically expires when conditional green card expires) - risk not being allowed back in.

File I-751 (ROC) as soon as possible (i.e. 6 June 2016) - this can be sent off from abroad, but you should include a US address to avoid an "overseas hold".* You will receive a I-797C notice of receipt, which extends residency for 1 year while ROC is pending and gives you permission to work and travel. On receiving notification of biometrics (should be less than 90 days), return to the US to do biometrics (using as-yet unexpired REP).

Use I-797C letter (which we could have sent to us in Switzerland by trusted US friend?) to re-enter US in April 2017 - it should be safe, because that absence (biometrics --> April 2017) will be less than a year, so presumption of abandonment will not apply (but bring plenty of evidence?).

Alternative? Don't seem to be any. If, for example, you applied for ROC but requested an "overseas hold", your REP would in the meantime expire. This could cause issues when returning to the US in April 2017, as although you will have the I-797C, at that stage you'll have been outside of country for more than a year, and REP will have expired.

Summary:

- January 2015: apply for REP

- June 2016: apply for ROC from abroad, listing a US address to avoid "overseas hold"

- July (?) 2016: return to US to do biometrics and collect I-797C receipt

- April 2017: return to US using I-797C receipt [absence of less than one year]

--

​----

* ​

According to lawandborder.com, if you list an overseas address on ROC application, USCIS will place "overseas hold" until you report return to US/US address (confirmed: AFM 25.1(g)(4)©).

(lawandborder.com): To avoid the overseas hold, an applicant should be sure to list a U.S. address. It may be also be important for the I-751 to explain the reason the CR is overseas, demonstrate that CR status has not been abandoned,[20] state that the CR will attend the scheduled biometrics interview and appointment, and request that the case not be subject to the overseas hold.

[hmh33 117]

It's generally unwise to assume that an immigration officer is giving you good advice, or even telling the truth. Furthermore, any issues you have on entering the country will be in the department of CBP, which is quite separate from USCIS. It might be good to consult your own immigration attorney (not the company's); if so you should try to find one who has *tried* an abandonment case.

That said: I think you understand the situation correctly, to the best of my knowledge.

[ajhigh 2]

It's generally unwise to assume that an immigration officer is giving you good advice, or even telling the truth. Furthermore, any issues you have on entering the country will be in the department of CBP, which is quite separate from USCIS. It might be good to consult your own immigration attorney (not the company's); if so you should try to find one who has *tried* an abandonment case.

That said: I think you understand the situation correctly, to the best of my knowledge.

Thanks for your advice and feedback, greatly appreciated! I definitely agree with you, and luckily with have ARAG coverage through my husband's work until the end of the year so I'll make a phone call to an immigration attorney to double check.

I also understand that there's always a risk when leaving the US, even with REP they have discretion to deny entry (I think??) so I'll be sure to bring as much evidence as possible, have a good paper trail, and maybe even call USCIS a couple more times to see if I get similar answers.

Thanks again!

[NikLR 13,220]

I suggest several calls to the USCIS and also several to the CBP to supervisors to make sure all the answers are similar.

[ajhigh 2]

Again, in case this of help for anyone in a similar situation - just had a telephone consultation with an immigration attorney in Florida. She confirmed my thinking - that I should come back for the biometrics, and need to avoid an "overseas hold" by explaining in the ROC application that I am living abroad but still have a US postal address that I Am regularly checking (i.e. be careful not to misrepresent on the form and give the impression I'm living in the US when I'm not).

As for returning in April 2017, she said that the I-797C can't take the place of a re-entry permit, but because I'll have been out of the country for less than one year at that point (having returned in around August 2016 for ROC biometrics), I *should* be OK at the border. Bring plenty of evidence, especially letter from husband's employer explaining this was a temporary, finite overseas assignment.

To completely cover my bases, I'd have to apply for a second REP as well as ROC, but that would potentially involve two separate flights back to the US for biometrics.

Thanks for your input, VJers.