Abandoned Green card, does that mean I can't ever use VWP again?

[mrs.jenjen 0]

So the story, as short as I can make it.

Entered US in June 05 on VWP. Married in Nov 05, got my conditional green card in May 06.

Had baby in September 06 (what can I say, we didn't waste much time!) and then in Dec 06 flew back to the UK to visit friends and family with husband and baby boy.

My husband then decided he didn't want to be married anymore, and after a fight (where threats were made about kidnapping child) bought himself a flight back to the US alone, and cut off all my bank cards etc. Basically, he left me in a country I'd not lived in for almost 2 years, with a 3 month old child and no money at all to support us with.

We've done well, and are now settled here in the UK. However, I'm a bit apprehensive about what happens when the inevitable occurs and my ex decides he wants our son to spend time with him in the US. While he's too young right now for me to even entertain that thought, I know it will definately be an issue further down the line, and I'd like to be prepared.

I'm quite aware that my son may request to spend time with his father in the future, and if he isn't at an age I feel is old enough to be travelling alone (say before he's 12 or 13), I know I would want to accompany him - at least for a first visit. Also, theres the possibilty I might want to visit the US again in the future - probably not texas lol - but say NY or a trip to Disneyland Florida or something. How does my previous immigration status and the fact that I abandoned a conditional greencard affect that?

A point to note - I overstayed for just under 180 days before I got married and applied for AOS. This was forgiven as I successfully AOS'd, however, will this overstay come back and bite me in the ### now I have effectively given up my right to hold that Green Card? Am I banned from ever re-entering the US?!

[Kez/JWolf 6]

You would need to apply for a tourist visa to visit the US as you can no longer use the VWP...

VWP countries are:

Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France,

Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg,

Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino,

Singapore, Slovenia, Spain, Sweden, Switzerland, United Kingdom (for

citizens with the unrestricted right of permanent abode in England,

Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of

Man)

You need a visa if you:

• Intend to stay longer than 90 days

• Intend to travel to the United States for a reason other than

business or tourism

• Have been arrested, even if not convicted

• Have a criminal record

• Have a serious, communicable disease (including HIV)

• Have been refused entry to the United States on a previous occasion

• Have been deported from the United States

• Have previously overstayed the 90 days permitted under the VWP

• Are a child included on your parent's passport

Has your child got a US passport? if not get him one asap..

Kez

Edited August 11, 2007 by Niagaenola

[mrs.jenjen 0]

You need a visa if you:

• Have been deported from the United States

• Have previously overstayed the 90 days permitted under the VWP

• Are a child included on your parent's passport

Has your child got a US passport? if not get him one asap..

Kez

He does. However I am also applying for a UK passport for him.

In terms of the overstaying the VWP - I know that is forgiven upon marriage, which is where the confusion begins. Is it forgiven on marriage, so long as you STAY married?!

ie, in my case, forgiven on marriage, however 'unforgiven' in the event that your husand ditches you back in the UK and threatens to kidnap your child should you ever return stateside... That seems a little unfair!

[Kez/JWolf 6]

The overstay is not so much as forgiven at AOS interview it just wont be held against you... but to satisfy the conditions of the VWP you have to be able to answer no to all of the questions... and because you have overstayed your visit when using the VWP you are no longer allowed to use it...

There would be nothing to stop you returning to the US before the year is up and dealing with your divorce and then file to remove conditions on your own... your Greencard is still valid... but if you do not remove the conditions or remain out side the US from more than 12 months you will be abandoning your status and would need to apply for a tourist visa to be able to return for visits and vacations...

Good Luck

Kez

[Boiler 43,606]

The overstay is not so much as forgiven at AOS interview it just wont be held against you... but to satisfy the conditions of the VWP you have to be able to answer no to all of the questions... and because you have overstayed your visit when using the VWP you are no longer allowed to use it...

There would be nothing to stop you returning to the US before the year is up and dealing with your divorce and then file to remove conditions on your own... your Greencard is still valid... but if you do not remove the conditions or remain out side the US from more than 12 months you will be abandoning your status and would need to apply for a tourist visa to be able to return for visits and vacations...

Good Luck

Kez

You are geting into very very dangerous waters with this sort of advise. Most Immigration Lawyers are weak in this area.

What leads you to believe she has not abandoned her GC, everything in her post seems to suggest that is the case. I would not make a call either way.

[Kez/JWolf 6]

The overstay is not so much as forgiven at AOS interview it just wont be held against you... but to satisfy the conditions of the VWP you have to be able to answer no to all of the questions... and because you have overstayed your visit when using the VWP you are no longer allowed to use it...

There would be nothing to stop you returning to the US before the year is up and dealing with your divorce and then file to remove conditions on your own... your Greencard is still valid... but if you do not remove the conditions or remain out side the US from more than 12 months you will be abandoning your status and would need to apply for a tourist visa to be able to return for visits and vacations...

Good Luck

Kez

You are geting into very very dangerous waters with this sort of advise. Most Immigration Lawyers are weak in this area.

What leads you to believe she has not abandoned her GC, everything in her post seems to suggest that is the case. I would not make a call either way.

She has a valid Greencard and there is nothing to stop her from coming back to the US... I never said she would not be asked questions at POE about why she was out of the country for so long all I said was that there was nothing to stop her.... what she chooses to say to a CBP officer at POE is up to her... I am sure if she tell them her husband abandoned her in the UK and that is where she now lives she will be denied at POE.... but one thing I do know is that if it was me that was in her situation and I wanted to get my belongings and deal with a divorce and making sure myself and my child were protected I would not be giving extra info to any CPB officer... I am sure that the OP will do whatever is best for her and her child... her return to the US using her Greencard is just one option...

Kez

[Boiler 43,606]

The overstay is not so much as forgiven at AOS interview it just wont be held against you... but to satisfy the conditions of the VWP you have to be able to answer no to all of the questions... and because you have overstayed your visit when using the VWP you are no longer allowed to use it...

There would be nothing to stop you returning to the US before the year is up and dealing with your divorce and then file to remove conditions on your own... your Greencard is still valid... but if you do not remove the conditions or remain out side the US from more than 12 months you will be abandoning your status and would need to apply for a tourist visa to be able to return for visits and vacations...

Good Luck

Kez

You are geting into very very dangerous waters with this sort of advise. Most Immigration Lawyers are weak in this area.

What leads you to believe she has not abandoned her GC, everything in her post seems to suggest that is the case. I would not make a call either way.

She has a valid Greencard and there is nothing to stop her from coming back to the US... I never said she would not be asked questions at POE about why she was out of the country for so long all I said was that there was nothing to stop her.... what she chooses to say to a CBP officer at POE is up to her... I am sure if she tell them her husband abandoned her in the UK and that is where she now lives she will be denied at POE.... but one thing I do know is that if it was me that was in her situation and I wanted to get my belongings and deal with a divorce and making sure myself and my child were protected I would not be giving extra info to any CPB officer... I am sure that the OP will do whatever is best for her and her child... her return to the US using her Greencard is just one option...

Kez

You might want to re-read what you originally posted.

I would throw in another thought, what if they return to the US and he decides he wants to keep the child in the US?

[Kez/JWolf 6]

The overstay is not so much as forgiven at AOS interview it just wont be held against you... but to satisfy the conditions of the VWP you have to be able to answer no to all of the questions... and because you have overstayed your visit when using the VWP you are no longer allowed to use it...

There would be nothing to stop you returning to the US before the year is up and dealing with your divorce and then file to remove conditions on your own... your Greencard is still valid... but if you do not remove the conditions or remain out side the US from more than 12 months you will be abandoning your status and would need to apply for a tourist visa to be able to return for visits and vacations...

Good Luck

Kez

You are geting into very very dangerous waters with this sort of advise. Most Immigration Lawyers are weak in this area.

What leads you to believe she has not abandoned her GC, everything in her post seems to suggest that is the case. I would not make a call either way.

She has a valid Greencard and there is nothing to stop her from coming back to the US... I never said she would not be asked questions at POE about why she was out of the country for so long all I said was that there was nothing to stop her.... what she chooses to say to a CBP officer at POE is up to her... I am sure if she tell them her husband abandoned her in the UK and that is where she now lives she will be denied at POE.... but one thing I do know is that if it was me that was in her situation and I wanted to get my belongings and deal with a divorce and making sure myself and my child were protected I would not be giving extra info to any CPB officer... I am sure that the OP will do whatever is best for her and her child... her return to the US using her Greencard is just one option...

Kez

You might want to re-read what you originally posted.

I would throw in another thought, what if they return to the US and he decides he wants to keep the child in the US?

I did re-read my post and I still stand by what I said.... she does have the option to return to the US... whether she can convince the CBP that she has not abandoned her status is a whole other story and would depend on what questions they asked her and how she replied...

The possibility of her husband wanting to keep the child in the US is very real... he could at any time before the childs 18th birthday try to get full custody of the child whether it be if she was to return now or take the child into the US for a visit... But remember that the father has rights to and so does the child...

Not a easy situation to be in....

Kez

[Jelly 0]

Sorry to jump on this thread, but I am quite interested in the answer to this question for a friend of mine too.

He didnt overstay on the VWP, and was married within the 3 months and successfully adjusted status. He was married for 5 years and got his 10 year greencard but not citizenship. He is thinking about going back home to the UK for good and I wasnt sure what advice to give about what his status would be.

Obviously after the 12 months is up he would effectively be classed as giving up his permanent residence and wouldnt necessarily be allowed back in. But he never overstayed at any point so would the same thing apply?

Would he need to apply for tourist visa, and not be able to travel on vwp anymore?

And if he did have to apply to a visa, would the fact that he was previously a resident be held against him?

thanks

Jelly

[Boiler 43,606]

Sorry to jump on this thread, but I am quite interested in the answer to this question for a friend of mine too.

He didnt overstay on the VWP, and was married within the 3 months and successfully adjusted status. He was married for 5 years and got his 10 year greencard but not citizenship. He is thinking about going back home to the UK for good and I wasnt sure what advice to give about what his status would be.

Obviously after the 12 months is up he would effectively be classed as giving up his permanent residence and wouldnt necessarily be allowed back in. But he never overstayed at any point so would the same thing apply?

Would he need to apply for tourist visa, and not be able to travel on vwp anymore?

And if he did have to apply to a visa, would the fact that he was previously a resident be held against him?

thanks

Jelly

Not obvious at all. Residency is much more complicated, he could lose it the day he leaves but probably in the circumstances you decribe best to surrender it.

You mention no reason why he can not use the VWP, a good idea to take his receipt for GC surrender with him on any future visits to the US.

[mrs.jenjen 0]

Just to clear something up in case it is useful for anyone else in a similar situation...

If I were to return to the US now, my husband would have no legal leg to stand on in terms of custody or residency of our child. He is officially a habitual residence of the UK and has been since March, and the UK now has jurisdiction in terms of any court determining which parent he lives with or where he should live.

This is due to the hague convention, and I have had this confirmed by a lawyer who specialises in international child custody cases. Basically, the country that the child has lived in for the longest is the country that any court proceedings have to be filed in, and in 99.9% of cases, the courts award custody to the habitually resident parent, which prevents the child from ever being taken back to the immigrant spouse's country without permission. Had my husband claimed his custodial rights back in Feburary I would have been in a very sticky situation due to the fact that our son had lived in the US longer than he had the UK at that point. I could easily have been court ordered to return to the US until the case was heard, and would have been unable to leave the US again with our son unless my husband gave permission - which obviously he wouldn't have done. Luckily that didn't happen!

However now, the shoe is on the other foot. If I did ever choose to return to the US for a vacation, before I travelled I could have the courts here issue a residency order that I could show to any court in the US to prove my son's residency. Should a custody issue arise, I would be within my rights to demand that he be returned to the UK, and for all custody battles be fought in a british court. Obviously visiting at all is still a risky move as I could not prevent him just TAKING him, however legally, everything is on my side.

Anyway, this is all a moot point as I have no plans to return to the US anytime soon, and it looks like my husband is much more interested in sleeping around and basically acting like a college student than visiting his son anytime in the near future!

[borealgirl 0]

I know it has been awhile since you posted this, but I just stumbled upon it. What a jerk your ex is! You are a very positive and strong-sounding woman. I am so sorry that you had to go through that. Best of luck to you.

Just to clear something up in case it is useful for anyone else in a similar situation...

If I were to return to the US now, my husband would have no legal leg to stand on in terms of custody or residency of our child. He is officially a habitual residence of the UK and has been since March, and the UK now has jurisdiction in terms of any court determining which parent he lives with or where he should live.

This is due to the hague convention, and I have had this confirmed by a lawyer who specialises in international child custody cases. Basically, the country that the child has lived in for the longest is the country that any court proceedings have to be filed in, and in 99.9% of cases, the courts award custody to the habitually resident parent, which prevents the child from ever being taken back to the immigrant spouse's country without permission. Had my husband claimed his custodial rights back in Feburary I would have been in a very sticky situation due to the fact that our son had lived in the US longer than he had the UK at that point. I could easily have been court ordered to return to the US until the case was heard, and would have been unable to leave the US again with our son unless my husband gave permission - which obviously he wouldn't have done. Luckily that didn't happen!

However now, the shoe is on the other foot. If I did ever choose to return to the US for a vacation, before I travelled I could have the courts here issue a residency order that I could show to any court in the US to prove my son's residency. Should a custody issue arise, I would be within my rights to demand that he be returned to the UK, and for all custody battles be fought in a british court. Obviously visiting at all is still a risky move as I could not prevent him just TAKING him, however legally, everything is on my side.

Anyway, this is all a moot point as I have no plans to return to the US anytime soon, and it looks like my husband is much more interested in sleeping around and basically acting like a college student than visiting his son anytime in the near future!

[Inlove_tx 0]

Jen, I remember when we were part of our little "Dora corner" together a couple of years ago and I am SO crushed to read your sad news...you're such a sweet person!

I really hope you're doing better and wish you all my best!

Let me know if you should ever need anything from here, I'll do my best to help!