Applying for Spousal Visa but husband received Notice to Appear to be deported?!

[taramarabobara 0]

Please help me, I have no idea what to do.  In 2015, my husband came to the US from the UK on a K-1 Fiance Visa.  We got Married, and his AOS was in November, 2015.  A few months before his conditional greencard was due to remove the conditions, we decided we wanted to move to England.  His greencard expired November 26, 2017, and he left the US on November 17th, 2017, without removing the conditions on his greencard, since we were moving to England.  Fast forward a few months, in April 2018, we decided we did NOT want to move to England.  So, I filled and sent in I-130 for a spousal visa.  Here's where I need help.  On Monday, he received a Notice to Appear from USCIS for removal proceedings.  He left before his greencard expired, but they think he is still in the US?  I don't know what to do.  This could really throw a kink in getting our spousal visa, I need to let them know he left the US while he was still a permanent resident, do I call them?  Write a letter?  Where would I mail the letter?  The summons came from the Vermont Service Center.

[geowrian 22,336]

They likely did not notice that he left the US yet...it takes at least months for them to process new information. =_=

The NTA is technically correct...he was required to file for ROC and failure to do so automatically will start proceedings to remove his LPR status and be deported. He should have formally abandoned his green card once arriving in the UK via an I-407 (https://www.uscis.gov/i-407). Just leaving the US does not automatically relinquish permanent residency...an LPR is permitted to travel abroad for up to a year without a presumption of abandoning residency, so unless he informs immigration of his intent to abandon residency, they are likely assuming he just went for a trip abroad.

 

Anyway, that's all in the past now. As for what's next, I suggest seeking an immigration attorney as there are a few different paths possible. Two such paths are:

1. Since he is still technically an LPR until the immigration judge determines otherwise, and it's been less than a year since he left, if he can get on a plane then he may be able to enter the US as an LPR still (possibly getting a boarding foil at the embassy if he can't board a plane due to the green card being expired). He would then have to deal with the proceedings, file an I-751, etc.
   1. There is a risk of being paroled or detained instead of just admitted an LPR...especially since he is pending proceedings and it sounds like he had actually taken up residence abroad, even if only for months.
   2. No I-130, visa, or AOS would be needed here, and at the end, if everything goes well, he would get a 10 year green card.
2. File the I-407 at the nearest embassy/consulate to formally abandon the green card, and also try to have the removal proceedings closed without prejudice since there is no longer any need for them (not an LPR and not in the US). Have evidence of when exactly he left the US. Then the I-130 can proceed....although since he was still an LPR at the time you filed, this may or may not be an issue.

There's likely other options as well, but those are the 2 jumping out most to me. And again, I'd highly suggest contacting  a good immigration attorney to expand upon the options noted above, and possibly provide alternatives.

 

Edit: Most of all, do not ignore the NTA or miss any court dates. That could seriously impact the process to return.

Edited June 20, 2018 by geowrian

[taramarabobara 0]

Thank you geowrian, we had no idea about I-407.  I guess I'll be contacting an immigration attorney.

[Russ&Caro 1,548]

I commend you for doing immigration the right way. Your assumption that you surrender your LPR rights upon moving out of the country (without surrendering your gc) was an honest mistake.  Geowrian generally gives good advice in this forum so follow one of the lines of advice above. Good luck!

 

Also, thanks for giving the full story. So often people come onto the story only giving bits and pieces of their story requiring others to fill in the blanks.

[Teemo 252]

1 hour ago, taramarabobara said:

Please help me, I have no idea what to do.  In 2015, my husband came to the US from the UK on a K-1 Fiance Visa.  We got Married, and his AOS was in November, 2015.  A few months before his conditional greencard was due to remove the conditions, we decided we wanted to move to England.  His greencard expired November 26, 2017, and he left the US on November 17th, 2017, without removing the conditions on his greencard, since we were moving to England.  Fast forward a few months, in April 2018, we decided we did NOT want to move to England.  So, I filled and sent in I-130 for a spousal visa.  Here's where I need help.  On Monday, he received a Notice to Appear from USCIS for removal proceedings.  He left before his greencard expired, but they think he is still in the US?  I don't know what to do.  This could really throw a kink in getting our spousal visa, I need to let them know he left the US while he was still a permanent resident, do I call them?  Write a letter?  Where would I mail the letter?  The summons came from the Vermont Service Center.

I wonder if there is a way he can keep his greencard if it expired just 8 months ago? Like, maybe file for removal of conditions now then show up to removal hearings stating where you are in the process with your receipt? Not sure if that's impossible. 

 

@geowrian will have a more informed opinion than me on this.  EDIT: just saw he addressed this in his post above

 

Btw there are way too many stories on here of people moving back to their home country and then later regretting it and wanting to move back.  Clearly it's too late for your situation now, but my general comment to anyone reading this is that there should be a lot more forethought and planning - for instance he could have applied for a re-entry permit that would allow him to be outside the country for 2 years, which gives them time to decide which country is their long-term future. 

Edited June 20, 2018 by Teemo

[mindthegap 2,543]

He remains a lawful permanent resident despite the NTA.

 

Your post isn't clear whether you still live in the US still and it is just him in the UK. If not, do you have access to any address in the US? I am guessing so, as you received the NTA.

If so, file an I-751 immediately, fedex it from the UK, but putting the US address as filing address, with a letter outlining why filing late (didn't realise it was a requirement, no reminder notice was received etc). Do not mention the NTA or moving back to the UK. Bare bones evidence provided at this time - deal with that later. the most important thing is to get it filed and accepted.

If accepted, the cheque will be cashed, a receipt/extension letter will be issued - and you need this forwarded to you in the UK (it is watermarked so a copy is no good).

You need this letter in conjunction with the expired card to board to the US, or enter the US. The alternative is a transportation letter from the embassy, but this costs money, and may not be straightforward to obtain with a pending NTA.

 

 

Once this is in hand, get on a plane to the US - for the APIS, the GC expiry date will now be the expiry of the extension letter.

At immigration when they run the A# they should see the pending proceedings, ask if he has received a NTA, and then let him in, possibly with an annotation on the stamp advising residency requirements as been gone over six months.

 

 

He can file an I-751 (or multiple I-751s) at any time before a final order of removal by an immigration judge, which as you have only just received an NTA (notice to appear), has not happened yet. It will be stressful, but all is not lost.

 

 

 Absolute worst case, apply for an IR-1 (via DCF if you live in the UK too). However, an I-407 must be done first and the court proceedings taken care off/dropped. Bonus with this route, is you will never have to go through removal of conditions as married over two years.

 

 

Edited June 20, 2018 by mindthegap

[Teemo 252]

1 hour ago, geowrian said:

1. Since he is still technically an LPR until the immigration judge determines otherwise, and it's been less than a year since he left, if he can get on a plane then he may be able to enter the US as an LPR still (possibly getting a boarding foil at the embassy if he can't board a plane due to the green card being expired). He would then have to deal with the proceedings, file an I-751, etc.
   1. There is a risk of being paroled or detained instead of just admitted an LPR...especially since he is pending proceedings and it sounds like he had actually taken up residence abroad, even if only for months.
   2. No I-130, visa, or AOS would be needed here, and at the end, if everything goes well, he would get a 10 year green card.

On second thought, yes I think if you can convince a carrier to take him, the US will almost definitely let him in the country, after giving him a hard time at secondary processing. But they will defer to the judge to have the LPR removed and someone deported, since he has been out of the country for less than a year. If it was more than a year I think they would just not let him in. So yes he would probably be paroled and referred to a judge, but with a pending ROC and intention to live within the US it should be a compelling case. And it's kind of nice you already have a court date already so you can move forward with a more definite timeline.  

Edited June 20, 2018 by Teemo

[geowrian 22,336]

9 minutes ago, Teemo said:

On second thought, yes I think if you can convince a carrier to take him, the US will almost definitely let him in the country, after giving him a hard time at secondary processing. But they will defer to the judge to have the LPR removed and someone deported, since he has been out of the country for less than a year. If it was more than a year I think they would just not let him in. So yes he would probably be paroled and referred to a judge, but with a pending ROC and intention to live within the US it should be a compelling case. And it's kind of nice you already have a court date already so you can move forward with a more definite timeline.  

If it was over a year, they would probably let them abandon the green card there, otherwise detain them pending a hearing in front of an immigration judge. But since it's under a year and other circumstances, I agree that he would probably be admitted or paroled.

 

18 minutes ago, mindthegap said:

didn't realise it was a requirement, no reminder notice was received etc

Yes, assuming that was the reason. If the reason was because they intended to live abroad permanently so they didn't want to deal with it...well, it is what it is. Sometimes silence is better than stating the reason upfront.

[taramarabobara 0]

I'm sorry, I should have made it clear.  I am still in the US, he was going to apply for a UK Spousal visa for me.  We decided to "stay" in the US before he applied for a the UK visa for me.

[mindthegap 2,543]

16 minutes ago, geowrian said:

 

Yes, assuming that was the reason. If the reason was because they intended to live abroad permanently so they didn't want to deal with it...well, it is what it is. Sometimes silence is better than stating the reason upfront.

Of course, less is more. 

However, a late joint filing (not waiver) will only ever be accepted accompanied by a letter requesting a late filing and outlining a good reason for doing so, so the I-751 can’t just be sent with no letter.

[pushbrk 12,250]

Seek the advice of a qualified Immigration Attorney before doing anything.  Make sure they have plenty of experience dealing with deportation orders.  Some only do corporate work on work visas.  Don't hire one of those.  One experienced with deportation orders will know just what to do in your circumstances.  THIS...IS...a legal issue.  That's what attorneys are for, legal issues.

[Hypnos 6,576]

I don't think he's still an LPR.

 

Conditional LPRs who do not file a timely RoC application have their status automatically terminated. This is different from unconditional LPRs whose ten year green cards expire, since only their card expires (the proof of their status) and not the status itself. 

 

But I agree that consulting an experienced immigration attorney is the way to go initially. 

Edited June 20, 2018 by Hypnos

[pushbrk 12,250]

Yes, it's a common misunderstanding that the card is what expires.  CR1 status means both the card AND the Status expire.  Once conditions are removed, only the card expires and status continues.

[taramarabobara 0]

Thank you, everyone. I can’t belive how bad we messed this up. We had zero problems doing the K-1, EAD, AOS by ourselves. We didn’t properly research or prepare for this scenario. I will be contacting an immigration attorney tomorrow. 

[mindthegap 2,543]

16 hours ago, Hypnos said:

I don't think he's still an LPR.

 

Conditional LPRs who do not file a timely RoC application have their status automatically terminated. This is different from unconditional LPRs whose ten year green cards expire, since only their card expires (the proof of their status) and not the status itself. 

 

 

The wording of a denial letter implies that status is automatically terminated as of the date of the letter - but this is legally wrong.

It still remains the case that an immigration judge must rule a final order of removal which formally terminates the status (and at that point no I-751 can be filed), which is why a NTA is issued. You are also entitled to proof of LPR status between denial and a judge ruling (some case law demonstrating this for which I don't have the reference to hand).

 

You can still file an I-751 (or multiple ones) after a denial notice. It also clearly states in the I-751 instructions that a I-751 waiver filer can file at any time between gaining permanent residence and a final order of removal by a judge - this wouldn't be possible if status was legally automatically terminated upon denial for failure to file.

 

Of course, USCIS helpfully make this process as clear as mud for people.