Options for visa after being outside US for >1 year

[dq2000 1]

hi all!

Our backstory:

Back in 2004 I met my future wife through another friend and we quickly hit it off. She's from Vietnam originally and I'm a US citizen. After meeting a few times and spending a massive amount of time chatting/taking online, we were engaged and I went through the K1 visa process. If I didn't say it enough back then, thanks so much to this site for leading me through the process. This site is a life-saver for sure! Anyhow, she finally arrived in 2009 and we married a few months later.

My issue:

My wife was going through a very tough time the past year with her dad, then her mom, and even her older brother getting very sick, not to mention their financial problems, so she left the US in September of 2015. Our plan was she was going to stay in VIetnam a bit, take of her family, and try to decompress basically. The move here, language barriers, and having to restart a new life in a new country, was difficult. She was over-stressed and it took a toll on us.

My question for the community:

Anyhow, we're at much better place now and she wants to return to the US and our life here. Note this would be after she's been outside the country for more than 1 year. She was a student at a state university, but had to essentially quit (she's planing to restart when she returns). I'm trying to figure out her options and am getting a bit overwhelmed myself figuring it all out. If she stays outside the US for more than a year, as far as I understand it, she officially "abandoned" her Green Card. Is that correct? We made a huge mistake and we didn't realize she should have gotten a re-entry permit, so that option is out of the question. Is a DCF a possibility here or is our only option the IR-1 visa? We're both upset about the length it take to process and am hoping beyond hope that there is another option?? Any help in this matter would be wonderful.

thanks!!

david

[MsCompE 50]

SB-1 visa might be applicable if you can justify that "unable to return to the United States for reasons beyond their control"

"Permanent resident aliens, who were unable to return to the United States for reasons beyond their control within the travel validity period of the Permanent Resident Card (Green Card), or the Reentry Permit, may apply for a special immigrant Returning Resident (SB1) visa."

https://www.uscis.gov/green-card/after-green-card-granted/maintaining-permanent-residence

Additional Links:

http://www.cilawgroup.com/news/2014/09/16/sb-1-returning-resident-what-to-do-when-a-green-card-is-abandoned/

https://travel.state.gov/content/visas/en/immigrate/returning-residents.html

http://www.***removed***/greencard/returning-resident-visa.html

Edited September 8, 2016 by MsCompE

[dq2000 1]

I believe you can apply for SB-1 visa.

"Permanent resident aliens, who were unable to return to the United States for reasons beyond their control within the travel validity period of the Permanent Resident Card (Green Card), or the Reentry Permit, may apply for a special immigrant Returning Resident (SB1) visa."

https://www.uscis.gov/green-card/after-green-card-granted/maintaining-permanent-residence

Additional Links:

http://www.cilawgroup.com/news/2014/09/16/sb-1-returning-resident-what-to-do-when-a-green-card-is-abandoned/

thanks for the advice! I'm worried about applying for something that so many have described as "difficult". I'm also not sure we can claim she was out of the country because of reason "beyond her control", which i think is the requirement?

I'll look into that more, though..thanks again.

[Penguin_ie 5,986]

The looking after sick parents, if it was supposed to be a few months and then they stayed sick, could qualify as :out of her control. I think it is worth a try.

DCF won;t work unless you live there too.

[EM_Vandaveer 2,369]

Is her GC still valid? You should have her fly to the US. CBP cannot take her GC unless she signs a paper giving it up. Don't let her do that. The most they can do is refer her to an Immigration Judge, if that happens, you can still fight that.

[dq2000 1]

Is her GC still valid? You should have her fly to the US. CBP cannot take her GC unless she signs a paper giving it up. Don't let her do that. The most they can do is refer her to an Immigration Judge, if that happens, you can still fight that.

Yes, her GC is still valid for a few more years (she got a 10 year green card i think, back in 2010 or so). I thought they would be able to deny her admission to the US and we'd be forced to fly back? Do you have any idea what the possible outcomes of her coming are? Thanks for the info, BTW.

[dq2000 1]

The looking after sick parents, if it was supposed to be a few months and then they stayed sick, could qualify as :out of her control. I think it is worth a try.

DCF won;t work unless you live there too.

I also figured a DCF wouldn't be possible, thanks for confirming that. Plus, I'm not sure i could take the time to live over in Vietnam to make that happen anyhow.

I would think looking after parents would suffice as well, but I'm getting conflicting info on the internet (not surprising:)). I'll definitely look more into this. I really appreciate your response!

[EM_Vandaveer 2,369]

Yes, her GC is still valid for a few more years (she got a 10 year green card i think, back in 2010 or so). I thought they would be able to deny her admission to the US and we'd be forced to fly back? Do you have any idea what the possible outcomes of her coming are? Thanks for the info, BTW.

They can't take her LPR status at the border. They can refer her to an Immigration Judge. They may parole her in while giving her a court date. They might detain her until her court date, but that's relatively unlikely.

They may even just let her in and not refer her to a judge.

It would help if you were flying with her and she has some evidence of why she was out of the US for so long (doctor's letter, etc.)

[KierenHby 897]

Her flying in to the US on her current green card is worth a try. Might help if you were with her to help explain the situation to the CBP. They don't take away her green card without due process, which she'd have a better chance retaining while together on US soil.

[dq2000 1]

They can't take her LPR status at the border. They can refer her to an Immigration Judge. They may parole her in while giving her a court date. They might detain her until her court date, but that's relatively unlikely.

They may even just let her in and not refer her to a judge.

It would help if you were flying with her and she has some evidence of why she was out of the US for so long (doctor's letter, etc.)

Her flying in to the US on her current green card is worth a try. Might help if you were with her to help explain the situation to the CBP. They don't take away her green card without due process, which she'd have a better chance retaining while together on US soil.

thanks so much for the responses. This is great advice and I'm going to look more into it. I'll probably seek legal advice on this, given how chancy it feels.

Edited September 13, 2016 by dq2000

[Starkilla09 366]

Have her attempt to get the to U.S. with her greencard with strong evidence why she stayed that long. CBP can still admit you at their discretion. One girl shockingly got admitted on this forum after staying overseas for 5 years and her case was clear abandonment. At the port of entry she explained to CBP officer about her separation and emotional distress from marriage and was let in with no referral whatsoever to a judge. It's all up to the officer she meets.