LPR outside the US over a year, give up GC, ESTA, or both?

[joels341 0]

Hi all,

 

My wife is an LPR and we have been living abroad as she works for an international organization of which the US is a member.

So we have maintained her LPR status by flying every 6 months. We also have Global Entry.

 

Because of Covid, we have been away from the US for 18 months. Even though flights resumed earlier, we did not go for fear of spreading Covid needlessly.

 

Since we cannot guarantee travel every 6 months in the current climate and don't live in the US, we are thinking of abandoning her LPR status (so no re-entry permit,  no consulate boarding FOIL, and no DS-117 resident re-entry visa). If we travel to the US, should could get an ESTA and enter as a Visa-Waiver tourist.

 

Before we do something drastic like fill out an I-407 to surrender her green card, I wonder if the following would be possible.

Would it be possible to fly to the US with both a Green Card and an ESTA. If we go to Global Entry, get flagged, and CBP says we need to see a judge, could she surrender her green card then and there and continue to enter as a tourist with the valid ESTA?

As we would only be in the US on vacation, we do not want to see an immigration judge and want to be free to leave at the end of the trip without issue.

 

Any experience trying to fly with GC and ESTA and using whichever works? Other recommendations?

 

Best,

Joel

[Crazy Cat 41,979]

I would not surrender the green card unless she really wants to abandon status.  Any entry vis ESTA (if even legal)  would be at the discretion of CPB.    

BTW, what makes you think visiting the US every 6 month maintains residency?  Do you have a source which says that?  

@HRQX is good at knowing these rules.  Calling him in to this topic....

[Letspaintcookies 2,310]

I don't see her even get an ESTA as LPR. She would need to apply for it after her LPR status is revoked and I don't see that happen right then and there.

[joels341 0]

39 minutes ago, Crazy Cat said:

what makes you think visiting the US every 6 month maintains residency

It's been working for 10 years, and when asked by CBP why we live abroad, we stated the exception for employees of international organizations of which the US is a member, and they were always ok with that explanation. But the requirement to not be away for more than a year at a time still applies, I believe. :(

34 minutes ago, Letspaintcookies said:

I don't see her even get an ESTA as LPR. She would need to apply for it after her LPR status is revoked and I don't see that happen right then and there.

She will be denied an ESTA? 

[SalishSea 17,921]

26 minutes ago, joels341 said:

It's been working for 10 years, and when asked by CBP why we live abroad, we stated the exception for employees of international organizations of which the US is a member, and they were always ok with that explanation. But the requirement to not be away for more than a year at a time still applies, I believe.

She will be denied an ESTA? 

GC holders are eligible for ESTA?

[marie132 0]

1 hour ago, Letspaintcookies said:

I don't see her even get an ESTA as LPR. She would need to apply for it after her LPR status is revoked and I don't see that happen right then and there.

I guess the question really is, at this point, if I need to go back to take care of family matters, what do I need to do?

[HRQX 4,145]

2 hours ago, joels341 said:

My wife is an LPR and we have been living abroad as she works for an international organization of which the US is a member.

So we have maintained her LPR status by flying every 6 months.

Would she want to eventually naturalize? If so, look into Form N-470 (Application to Preserve Residence for Naturalization Purposes) process: https://www.uscis.gov/n-470

“Certain employment purposes” includes working for:

• The U.S. government.
• An entity that is currently recognized by USCIS as an American institution of research.
• An American firm or corporation (or a subsidiary of that firm or corporation) where you engage in developing the foreign trade and commerce of the United States.
• An American firm or corporation engaged in the development of foreign trade and commerce of the United States, where you protect the property rights outside the United States of that American firm or corporation.
• A public international organization of which the United States is a member by treaty or statute.
• A denomination or mission that has a bona fide organization in the United States in which you perform ministerial or priestly functions or your sole role is a clergyman or clergywoman, missionary, brother, nun, or sister.

https://www.uscis.gov/sites/default/files/document/forms/n-470instr.pdf

You should file this application if you meet all of the requirements below:

1. You must have been physically present and residing in the United States for an uninterrupted period, without any absences, for at least one year after your admission as a lawful permanent resident (except religious workers);
2. You will be absent from the United States for one year or more;
3. You have qualifying employment in a specific job with the U.S. Government, private sector, or religious organization; and
4. You want to preserve your continuous residence for naturalization purposes.

 

 

Also to explore a different potential alternative: Where do you currently work at/for? There is a specific exemption provision for "Spouses of U.S. Citizens Employed Abroad." https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-4

Qualifying employment abroad means to be under employment contract or orders and to assume the duties of employment in any of following entities or positions:^[12]

• Government of the United States (including the U.S. armed forces);

• American institution of research recognized as such by the Attorney General;^[13]

• American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof;

• Public international organization in which the United States participates by treaty or statute;^[14]

• Authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States; or

• Engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States.

Edited August 21, 2021 by HRQX

[marie132 0]

1 hour ago, marie132 said:

I guess the question really is, at this point, if I need to go back to take care of family matters, what do I need to do?

I'm open to giving my green card back if it is the most realistic, since we aren't going back to the US in the near future.

[El Escocés 217]

After spending a few thousand dollars on my green card, and having had a few sleepless nights wondering if I’ll ever get it, if there was a way to preserve my status, maybe via the path suggested by @HRQX, I’d try that before giving up my GC and having to start again down the road. 

[HRQX 4,145]

1 hour ago, El Escocés said:

if there was a way to preserve my status, maybe via the path suggested by @HRQX, I’d try that before giving up my GC and having to start again down the road.

After further research it looks like that for those "employed by a public international organization of which the United States is a member by treaty or statute" the N-470 helps with continuous residence requirement but doesn't cover the physical presence requirement. Also a Reentry permit would still be needed: https://www.uscis.gov/sites/default/files/document/forms/n-470instr.pdf "NOTE: You must still apply for a reentry permit in advance of trips outside the United States that you expect to last for one year or more. Approval of Form N-470 does not exempt applicants from the physical presence requirements for naturalization unless they are employed by, or under contract with the U.S. Government."

 

But depending on the US citizen's type of employment, the LPR spouse could be exempt to both requirements and wouldn't need Form N-470: https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-4 "Spouses otherwise eligible under this provision are exempt from the continuous residence and physical presence requirements for naturalization."

Edited August 22, 2021 by HRQX

[African Zealot 1,455]

17 hours ago, joels341 said:

Would it be possible to fly to the US with both a Green Card and an ESTA. If we go to Global Entry, get flagged, and CBP says we need to see a judge, could she surrender her green card then and there and continue to enter as a tourist with the valid ESTA?

Totally unnecessary. I understand you don’t want to be bothered with seeing an immigration judge since you’re comfortable abandoning the green card and being allowed entry as a visitor. Well I have news for you, the immigration officer at the airport has the authority to allow you to enter as a visitor upon you voluntarily relinquishing your permanent residency right there.

 

So to answer your question, in your situation I will travel on the green card. If the immigration officer makes a big deal about you being away too long and that he will admit you to go see an immigration judge, you can simply tell him/her you are willing to relinquish it right there and that you only need X days of permission to enter as a visitor.

 

Personally I will “milk” the green card as long as I can and only relinquish it when it becomes untenable. I personally know at least two people in my circles (in addition to many stories from online) who returned to the USA on their green cards after being away longer than one and even two years and not being asked even a single question about the length of their absence.

[African Zealot 1,455]

15 hours ago, marie132 said:

I guess the question really is, at this point, if I need to go back to take care of family matters, what do I need to do?

Are you the original posters spouse?

[marie132 0]

28 minutes ago, African Zealot said:

Are you the original posters spouse?

Yes I am!