Abandonment of Green Card

[wshc 46]

(Sorry but I do not have the form numbers at this time, my wife has all the paperwork. Thanks to this process we are now 5000 miles apart.)

My wife and I married in 1986 in England. I am US citizen and she is German. We moved to the US, she had an imigrant visa at the time, and she received her Green Card in 1990. In 1992 we moved to Germany, where we stayed for 17 years. The card was expired. In 2008 my German employer opened a branch in the US, and I went there alone to start the office. My wife visited in May of 2009 for a 10 day visit to find us a house to move in to with the family (moved in August 2009). She traveled using an ESTA visa. No fraud intended, we just thought that is what we were suppose to do. In August 2009, she came to the states with the children, (they all have US passports) and at the Chicago port of entry, she was forced to sign an adandemont of LPR status. She was allowed to enter the country however, I don't know what her official status was at that stage . We promptly went to the local Immigration office and discussed the options. We filed for a renewal of her Green Card. Payment was received and she had her biometrics appointment. Then 3 months later we received notice that the application was denied because there was no evidence of the old green card, (which was kept by Customs Officer at the point of entry.) However, the abandonment letter clearly states that "the card" was confiscated, proving that a card did exist.

We opened a service call with the Nebraska Service center, received a number etc.. We had not received any answer, and we travelled to Germany for my son's wedding. Upon rentry yesterday, customs took up in to custody for over 3 hours and their decision was that my wife was denied entry and was sent back to Germany. (I had to continue because of work.)Her statement was taken on FormI-877.

My wife has an appointment Friday at the consulate in Frankfurt, but after reading through this forum, it doesn't look very good for any humane decision to come from the Immigration people.

Does anyone have any advice for us. We are at a total loss and our lives are temporarliy destroyed. We did everything the local immagration told us to do. We played by the rules, but the system in intent on keeping two hard working, tax paying people out of the country. (Okay, they are not doing anything to me directly, but any ban on my wife, and I am out of here. I have the German version of a Greencard (never expires) and I will go back there in a heartbeat if they do anything to my wife. Their loss, not mine. Yes, I have an extremely bad attitude, especially when people going by the rules are treated like criminals, and the truly illeagals are given a pass and probably amenesty.)

Please help with any advice you may have.

Thanks

[belinda63 2,981]

An American Green Card is for living, ie being a resident, in the US. Any stay outside the country of more than one year without prior authorization is considered to be an abandonment of resident status since you are no longer living here.

You need to start the CR-1 visa process to obtain a new visa and green card for her.

[kruz_patz 22]

(Sorry but I do not have the form numbers at this time, my wife has all the paperwork. Thanks to this process we are now 5000 miles apart.)

My wife and I married in 1986 in England. I am US citizen and she is German. We moved to the US, she had an imigrant visa at the time, and she received her Green Card in 1990. In 1992 we moved to Germany, where we stayed for 17 years. The card was expired. In 2008 my German employer opened a branch in the US, and I went there alone to start the office. My wife visited in May of 2009 for a 10 day visit to find us a house to move in to with the family (moved in August 2009). She traveled using an ESTA visa. No fraud intended, we just thought that is what we were suppose to do. In August 2009, she came to the states with the children, (they all have US passports) and at the Chicago port of entry, she was forced to sign an adandemont of LPR status. She was allowed to enter the country however, I don't know what her official status was at that stage . We promptly went to the local Immigration office and discussed the options. We filed for a renewal of her Green Card. Payment was received and she had her biometrics appointment. Then 3 months later we received notice that the application was denied because there was no evidence of the old green card, (which was kept by Customs Officer at the point of entry.) However, the abandonment letter clearly states that "the card" was confiscated, proving that a card did exist.

We opened a service call with the Nebraska Service center, received a number etc.. We had not received any answer, and we travelled to Germany for my son's wedding. Upon rentry yesterday, customs took up in to custody for over 3 hours and their decision was that my wife was denied entry and was sent back to Germany. (I had to continue because of work.)Her statement was taken on FormI-877.

My wife has an appointment Friday at the consulate in Frankfurt, but after reading through this forum, it doesn't look very good for any humane decision to come from the Immigration people.

Does anyone have any advice for us. We are at a total loss and our lives are temporarliy destroyed. We did everything the local immagration told us to do. We played by the rules, but the system in intent on keeping two hard working, tax paying people out of the country. (Okay, they are not doing anything to me directly, but any ban on my wife, and I am out of here. I have the German version of a Greencard (never expires) and I will go back there in a heartbeat if they do anything to my wife. Their loss, not mine. Yes, I have an extremely bad attitude, especially when people going by the rules are treated like criminals, and the truly illeagals are given a pass and probably amenesty.)

Please help with any advice you may have.

Thanksof

This is no joke situation.......first of sorry that you have to go through this. But first question did your wife ever get reentry permit ? Since she is didn't return to united states in 6 months. .. just guessing from the dates you have stated above.

Now if you really wana get some advise, get some suggestions by lawyer.......don't play all by yourself.....http://forums.immigration.com/ on this website Lawyer Rajiv Khanna gives free conference calls on immigration related issue.......suite yourself....but do get some advise.

[Penguin_ie 5,986]

i am not usually lawyer friendly, but I'd recommend one in this case.

[belinda63 2,981]

She lived outside the US for 17 years. She allowed her green card to expire. I really don't think there is any option but to file for a CR-1.

[Darnell 8,478]

re: the ban on her - suggest you contact yer US REP / US Senator's office - ask for immigration liason staffer, explain all, ask for inquiry to remove the ban. It smells to me like something wasn't 'finished up' properly at CBP at the airport.

[Brother Hesekiel 2,235]

Your case is interesting. You described the chain of events well, yet I had to read it twice in order to make sure I didn't overlook anything.

Please let me recapitulate, and please correct me if I made a mistake.

Your wife's Green Card expired, which implies that she abandoned her residency (and residence). She entered as participant with the VWP, which strictly is not allowed, as she was a resident before. As a visitor she should have applied for a B2, as someone who would want to live in the US again she should have applied for an SB-1, a "Returning Resident Visa."

When arriving again at the POE, she was "encouraged" to sign the obvious: that she wasn't a LPR anymore. Got it.

You then went to the local USCIS office to get her residency going again. How? You can't do AOS when you were married for eternity and she entered with the intention of adjusting status! If they want, they could grab her and spin her chair around until she gets sick to her stomach. I'm just not sure if they really did that.

The way to get the Green Card thing going is to file for a IR-1 visa for her. Should be a smooth process unless . . . yes, unless they evaluated your attempt to do AOS from the VWP (which allows for no legal recourse) as misrepresentation or, worse, attempted visa fraud. Did you actually formally submit an AOS petition to the immigration folks or what exactly did you do?

At this point I would need more information about the he said/she said status quo in order to tell you whether it will be easy or hell on Earth.

Edited July 15, 2010 by Just Bob

[wshc 46]

First, let me say many thanks for all of the input and advice. It is greatly appreciated. Yes I know we lived out of the country for 17 years and we knew the greencard did expire. But we thought "Permanent Resident Status" was just that. Permanent, and the card just expired. Some of this assumption was based on my reading of "Form I-551, Permanent Resident Card, Renewal Policy and Procedure—Final" which can be found here: Permanent Resident Card, Renewal Policy and Procedure—Final

Starting on page 19 of this document is the important information in this case: (Here is a short passage from that document.)

Inspectional Process and Procedure for Expired Forms I-551

At Land Border Ports-of-Entry (POEs), Seaports, and Airports

Officers who encounter an arriving LPR in possession of an expired 10-year Form I-551

will advise the LPR of the need to renew the card and will furnish the LPR with the Form I-90

(unless the LPR states that he or she already is in possession of the Form I-90). No further action

must be taken.

Careful determinations must be made, however, regarding whether the alien has

abandoned his or her permanent residence, especially if it is determined that a Form I-551 has

been expired for more than one year, and no current naturalization application is pending.

So while living in Germany, (never planned to stay there so long but sometimes life changes plans), we saw that the Green Card could be renewed once we returned to the states, that seemed like a procedure that was trouble free. We had no idea that a "Permanent" anything would be anything but permament. We are guilty of stupidity but not fraud.

So for some more specifics, as has been asked for, here is some more information:

Quick review:

My wife issued green card in 1990. We lived in the states at the time after being married in England in 1986. We moved to Germany in 1992, (job with a German Company). We lived our life normally with intentions of returning to the states one day, when the time was right. In 2008/09 the Germany company I was working for decided to open a US office and I moved to the states (alone) to open the office. With the 100 hour weeks etc. of starting a new business office, I was not doing very well on the topic of finding a house and the other things to get the family moved over at the planned time of August 2009. So we decided that my wife would come over in May 2009 for about two weeks to find us a house, sign the kids up for school etc.. Mainly based on hersay we just presumed that she could use the ESTA, VWP for entry for those two weeks, and that worked fine. Upon her arrival with our three younger children, (our four older children are remaining in Germany, they are adults now)she was send to secondary at the Port of Entry in Chicago. That is where she signed the form "Abandoment of LPR Status". We all know how these integorations (interviews) go. Also she was concerned about the children, which wern't even allowed in to Secondary but were waiting by baggae claim scared to death. So she signed the form, seeing no other alternative but deporatation without the children. There might not have been an alternative, I still think the application of that law is not legal and would not hold up in a court if ever tested.

Anyway, she was allowed to continue on to be with me at our new house. (After all of this, I am wondering what was her status officially then at that point? If she was considered a tourist under the VWP, then why didn't they check her return flight. I think they gave us a break on that but I am not sure.)

After we got settled in etc.. (about three weeks later) we made an appointment at our local USCIS office to see what steps we needed to take. We were adviced that we had two options, go through the Green Card process again from the very beginning, or to use form I-90. I thought that was strange advice with two very different options. Of course we went the I-90 route because of various resasons such as time and money.

The paper work was promptly filed. Confirmation was received and a biometrics process was even completed. After over 5 months of waiting, we received a negative decision and the reason was: (not exact, my copy is in Germany with my wife)-

lack of evidence of a previous form I-551. Or greencard. Daaaaa?? Of course there was no Greencard to present because it was taken away in Chicago, BUT the abandoment form stating the status was abandoned noted that my wife was in possession of the expired Green Card and the officer kept that card. (But that is proof that the card existed.) This decision made no sense. We called the service number provided, and opened a case. The agent was very helpful and took all of the information. Our argument was that basically the decision was based upon a false assumption, or non-fact. We pointed out that the "letter of abandonment" was also provided with the form I-90 application and it clearly stated that the old Green Card existed. But again, what is this for a reason, there should be record of my wife's GreenCard in the system. Of course we provided here alien number and all of the information that anyone could ever want or use, so they had all necessary information. This call and decision took place the first weeks of June. During the call we also asked about traveling outside of the country and we were told that it was not a problem during processing of the paperwork. I do not have any of this in writing of course. (Sometimes country boys can be so stupid and trusting.)

So, now to two days ago. POE and sent to secondary. I was there this time, and we had all of the paperwork. The office could not find any record of our service call, although I provided him with the information. I suspect that they might not have access to that system. So all he had as the last action was the negative decision. They then said that my wife is denied entry because of: (I do have a copy of this so I quote:)

You have been determined to be inadmissible under section212(a)(7)(A)(i)(I) of the INA; an immigrant not in possession of a valid, unexpired immigrant visa because you overstayed your lawful period of admission on 2010 and you do not appear to be a bona fide traveler. You will be refused admission to the United States under the Visa Waiver Program and you will be returned to your country. you are now ineligible to use the Visa Waiver Program at any time in the future and you will be required to obtain a visa before you may re-enter the United States.

I hope this provides useful information. My wife's appointment at the Consular in Frankfurt is tomorrow so I hope someone there can straighten this out and get here back to the US.

Thanks again for all of the information, it is greatly appreciated.

[Brother Hesekiel 2,235]

Thanks for the update. There's only one thing I don't get: WHEN did she overstay and IF that's the case, for how long? (My guess is that she overstayed less than 180 days when you submitted the I-90, which is no big deal.)

This information notwithstanding, you are in better shape than you may think. I take it your wife had an "unconditional" Green Card that was valid for 10 years. You are correct in your recent assumption that Green Card holders (Lawful Permanent Residents) are not only permitted, but actually required to reside in the US in order to keep their status and thus Green Card current. Only US citizens can come and go as they please. It's an American thing, as you as a USC had no problems settling in Germany, did you?

Whether or not she signed her Green Card away has actually no bearing here as she in fact has lost her resident status years ago, but it would have taken a judge's decision to make it formal once she had entered the US, which is why they allowed her entry only after that was taken care of. Had she refused to sign, they would indeed put her back on a plane to Europe.

More to the point, by absences from the US that take more than 1 year (for a maximum of 2 years), she would have to have applied for a "Reentry Permit" from the US BEFORE even leaving. So all of this is water under the bridge and not worth losing sleep over now.

Her status quo was that of an EX-LPR, who traveled to the US again. As I stated before, as an ex LPR she couldn't use the VWP anymore, needed a B2 as a tourist and an SB-1 as a returning resident. There was no way she could have gotten away with an I-90, no way in hell. You simply got a bad info from one of the drones and they have plenty of those at USCIS.

Your plan of action now: File an IR-1 petition for her. If they deny it based on an overstay you will file a waiver.

At this point I'd like to handle the ball to Jim, who is much more knowledgeable about the details involved.

Calling JimVaPhuong!

[wshc 46]

Update -

my wife had no luck in Frankfurt in getting some type of permission to come to the states to do the paperwork. Although they were helpful and professionally friendly, no way Jose. Opps, (no pun intended).

Our only recourse according to them was to start with the I-485 process. The reason the I-90 was denied was because with the abandoment of the Greencard, there was nothing to extend, and all arguments are just academic because fact is the I-90 was the wrong form and wrong direction. (Doesn't matter if the local office said we could do that or not.)(I also wonder how the I-90 application made it as far as it did. Didn't someone review the form for plausibility before the fee was accepted?)

I have an appointment at the local office in a few hours to start the process. My wife of course will not be allowed to enter the US until that is complete, so the questions, is there any way to expedite that process. I think I know the answer, but would appreciate any advice or tips on increasing the time to process the I-485. My kids are coming back from their vacation in Germany in a few weeks to start school here in the states, and they (as well as I) really need my wife here for all of that.

Would a congressman's intervention be a possibility, as suggested in one reply?

Thanks again for all of the input.

[Deputy Purple 1,294]

I-485 is to Adjust Status for someone who is already in the US.

What you need to do is file I-130 Petition to Sponsor Immediate Relative.

After that petition is approved by USCIS (4 - 7 months) you will move to the NVC (National Visa Center).

At NVC you will need to file I-864 Affidavit of Support and your wife will submit DS-230 Application for Immigrant Visa.

Once your case is complete there (can be done as quick as 3 weeks) you'll move to the Embassy in Frankfort for the interview.

Before the interview she will need to have her Medical Examination done (Frankfort Embassy Website will have details).

At the interview she'll be approved but informed that she needs to submit a 212 Waiver as she's inadmissible due to the overstay of VWP from her last permitted entry.

You should be able to have the Waiver request ready and submit it right at the interview.

Finally she'll wait a few more months for the Waiver to be approved.

Don't forget there are fees at every step of the way:

I-130 : $355

I-864 : $ 70

DS-230 : $400

Medical: $ varies by country

Generally the cost is around $1,000 and the process will take about 1 year to complete.

[Deputy Purple 1,294]

BTW,

Add $545 to the list of fees for the I-212 Waiver Processing Fee.

[wshc 46]

thanks for taking the time to help,

I meant to say that the I-130 will be filed and then the rest as you listed so well. I hope that I will be able to submit the I-130 today and somehow expidite the process.

Another questions - it has been suggested that form IR1 or CR1 is one way to go. After checking on that here:

CR1 Info Immigrant visa for a Spouse of a U.S. Citizen (IR1 or CR1) - An immigrant Petition for Alien Relative.

This would appear to be a way to allow my wife to enter the country so that we could then complete the paperwork. Is that correct?

(But then at the POE she may still be denied entry?)

I hope the local USCIS office can help in a few hours. btw.. I have made initial contact to a lawyer so I will see how that can help soon I hope.

[Deputy Purple 1,294]

The process I outlined is for her to receive the IR-1 Visa which will result in her having a new 10 year Greencard issued after she "activates" it by entering the US.

The only way for her to enter before the process is complete would be a B (Visitor's) Visa but she would need the I-212 Waiver for that. Since she is wanting to immigrate to the US that may be a tough one for her to get.

[Brother Hesekiel 2,235]

There are only 2 ways now:

1) IR-1 (CR-1 is for "conditional" when married less than 2 years)

2) DCF if you are still in the legal position (Aufenthaltsgenehmigung) to initiate this from Germany.

No, your wife will not be able to enter the US again until she has an immigrant visa.

(Sorry, short version as I'm typing on a tiny netbook.)