Reentry to U.S.

[dodger48 0]

I need help.  My wife is from the Philippines and we have been married for a little over 10 years.  She has her 10 year green card.  However, last year we had a huge argument and she decided that she wanted a trial separation.  So she went back to the P.I. Now we have been talking again online and want to reconcile and she wants to come back.  However, while she was living back in the P.I. her permanent  10 year green card has expired.  A friend here (also married to a filipina) said my wife needs a reentry visa.  So my questions are is a reentry visa the route we need to take?  Is that something I initiate here in the states or does she have to go to the American Embassy in Manila to process?  Do I have to make an appointment for her there at the embassy or can she just go there on a morning and request the reentry visa?  Also what paper work is required?  She has her expired green card and her Philippine passport.  Any help would be greatly appreciated.

 

[USS_Voyager 1,972]

How long has she stayed out of the US

[geowrian 22,337]

She can't board the plane with an expired green card.

Depending on how long she has been out of the country (and her ties that she maintained), there are 3 paths back to the US:

1. Get a boarding foil from the embassy or consulate (expensive, but works to get to the US). She needs to have not abandoned her permanent residency for this option...generally meaning less than 12 months abroad.
2. Returning resident visa (SB-1). This is difficult to obtain unless one can convince the CO that they had a good reason for staying abroad so long. Not a likely option for this situation.
3. Formally abandon the green card and then re-petition her for a new IR-1 visa. This will work fine, but is the slowest and most expensive option.

Edited August 31, 2019 by geowrian

[HRQX 4,145]

9 minutes ago, geowrian said:

1. Get a boarding foil from the embassy or consulate (expensive, but works to get to the US). She needs to have not abandoned her permanent residency for this option...generally meaning less than 12 months abroad.

If it's less than 12 months abroad, then it depends on the airline: https://www.uscis.gov/i-131a "Special Instructions"

Quote

If you are an LPR with an expired Green Card

If you have an expired Green Card, you may not need to file Form I-131A. Although regulations generally require an LPR to travel with a valid Green Card, U.S. Customs and Border Protection (CBP) policy permits a transportation carrier bound for the United States to allow you to board without carrier documentation if you:

• Are an LPR with an expired Green Card that was issued with a 10-year expiration date (and you have been outside of the U.S. for less than a year);
• Are an LPR who has an expired Green Card with a two-year expiration date and you also have Form I-797, Notice of Action, showing that you filed a Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (and you have been outside of the U.S. for less than a year). The Notice of Action extends the validity of the card for a specified length of time, generally one year; or
• Are an LPR military service member or employee of the U.S. government (or an LPR dependent of such an individual) on official U.S. military or government travel orders, regardless of time outside of the United States.

Check with your airline or transportation carrier before you file Form I-131A because, in some situations, they may still refuse to let you board even if you are in one of the categories above. In that case, you will need to file a Form I-131A.

 

[geowrian 22,337]

12 minutes ago, HRQX said:

If it's less than 12 months abroad, then it depends on the airline: https://www.uscis.gov/i-131a "Special Instructions"

Good to know....didn't know there were exceptions. Although yes, check with the airline first as they make the call and it is within their right to refuse.

In practice, getting airline staff to acknowledge this exception is probably the biggest hurdle, even if the airline technically permits it.

[HRQX 4,145]

21 minutes ago, geowrian said:

Good to know....didn't know there were exceptions.

The other exception that is listed in that section is also interesting. Seems it's based on 8 CFR § 211.1(b)(1): https://www.law.cornell.edu/cfr/text/8/211.1#b Apparently, those children become LPR upon US entry with Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence. http://myattorneyusa.com/children-of-lawful-permanent-residents-born-abroad

Edited August 31, 2019 by HRQX

[dodger48 0]

1 hour ago, USS_Voyager said:

How long has she stayed out of the US

More than 1 year

[geowrian 22,337]

12 minutes ago, dodger48 said:

More than 1 year

How long over a year? What ties did she maintain to the US? Did she file US taxes?

Edited August 31, 2019 by geowrian

[USS_Voyager 1,972]

30 minutes ago, dodger48 said:

More than 1 year

Most likely you have to file another petition for her

[dodger48 0]

1 hour ago, geowrian said:

How long over a year? What ties did she maintain to the US? Did she file US taxes?

March 2018 so almost 18 months.  Yes we maintained joint bank accounts and filed taxes

[geowrian 22,337]

42 minutes ago, dodger48 said:

March 2018 so almost 18 months.  Yes we maintained joint bank accounts and filed taxes

Tough call. Over 12 months has a mandatory presumption that permanent residence was abandoned (unexpired green card or not). But if it were like 13 or 14 months, it would probably be alright once to at least try to return to the US and argue your case there if you had to. Being 18 months AND not having a usable green card is a steeper challenge.

 

The 2 best options, IMO, are:

1) Go to the embassy or a consulate and see if you can get a boarding foil (not sure if they will do so given the 12+ month stay abroad possibly abandoning permanent residency). If they will issue one, then she can use that to get to the US. Then she will need to (likely again) make her case that she did not abandon permanent residency. Best case: they let her in. Worst (reasonable) case: They parole her and she sees an immigration judge to argue her case. Just be sure not to sign an I-407 to abandon perm ant residency if CBP presents it.

 

2) File the I-407 then start the IR-1 visa process.

 

Option #1 is much faster and a little cheaper (after the cost of the boarding foil + new green card once back in the US). But it does have more risk - namely possibly going in front of a judge and having to be re-petitioned anyway if they determine that permanent residence was abandoned.

First step would be to see if they would even issue the boarding foil. If not, then this route is DOA anyway.

 

Option #2 works perfectly fine, but it's a much longer process.

 

The SB-1 visa doesn't  seem like a likely option here, but it is something you can at least ask about if you go for option #1 anyway. That involves 2 interviews - 1 to determine if she qualifies to apply for it (she didn't abandon permanent residency and was abroad for so long with good cause) then another interview for the visa. Since she does have an eligible US sponsor (her spouse), this is on the table but the reason for being abroad so long is likely the killing factor here (she was abroad so long by preference, not need).

Edited August 31, 2019 by geowrian

[dodger48 0]

Thanks for the advice.  Not sure what route we will take.

[Boiler 45,657]

I am tempted to stay start again, I seem to recollect this coming up before and do not recollect how it panned through, quite some time ago.

 

Meanwhile one of our friendly mods will move it to the correct forum.

[TBoneTX 45,497]

Thread is moved from Tourist Visas to General Immigration Discussion.