Green Card Residency

Question:

I understand that LPR status is rarely revoked through immigration courts etc... but if I am am legal when I enter the country and then renew my green card (which will require its picture re-newing at the end of this year), would I need to do anything special in order to prevent them noticing the immigrant visa exipiring?

Answer:

I left the U.S. after a family death at 15 and have been away for about 4 years. I have a green card and had lived in the US for 8 years attending grades 2 though 10. Unfortunatly I was not old enough to claim citizenship when I left.

I recently wrote to the US embassy here asking about what I would need to re-enter the U.S. (since when I left the US I had no idea about immigration law etc...). They wrote back (eventually) and they sent back a standard letter with many sections and one ticked which said:

"Because you have remained abroad for more than one year, or beyond the validity of your re-entry-permit, you will require a new immigrant visa to reenter the United States as a legal permanent resident and to resume your residence there. Please refer to the attached form IV1 to determine the category of immigrant visa for which you may be eligible and for instructures on how an immigrant visa petition can be filed."

Now, since I have no family still in the US, I figure that I will need some form of employment based immigration. If I get such an offer and return to the US with an immigrant Visa, will my Green Card automatically be "reinstated" or would I have to re-do the 5 year process etc...

The part of the quote which made me think of this is the bit that says "resume your residence" and also the notion that a Green Card citizen has his residence until he relinquishes it or until the goverment proves that I have abandoned my residence. If I set up a new home on the new Visa, I would have a residence, and I already have a bank account, SSN, etc... from my existing life in the US.

Also, is there any problem in the mean time of entering the US on the visa waiver program as a tourist? I have a new foreign passport which has no US markings. (I have actually already done it once).

See:

http://travel.state.gov/visa;returning_alien.html http://www.americanlaw.com/maintlpr.html http://www.vkblaw.com/law/maintain.htm http://antaoandchuang.com/i-keeping.html http://foreignborn.com/visas_imm/entering_us/12returning-residentalie...

This last one explains what would be required for you to re-enter the U.S. legally as a permanent resident, under "Returning Resident (SB-1) Visa."

Unfortunatly, I would almost certainly be denied the SB-1 visa due to the fact that my stay abroad is not temporary and it is for such a long period of time (indeed in the letter that the embassy sent back to me one of the tick boxes was to file for this Visa and they did not tick the box).

This is why I was wondering if I entered the US on a new immigrant visa would my existing Green Card then be applicable again. Or would I need to renounce my LPR status to be able to apply for an immigrant visa?

I think you need to consult with a competent immigration attorney about your options.

For the SB-1, it doesn't matter how long the stay abroad is, but rather whether you had the intent to permanently move out of the US. Given that you say you left the US at age 15 four years ago, I think you might be able to make a case that you were too young and it was never your intention to move out of the US. It's not easy to do, and not exactly a common case (SB-1s are fairly rare) so I would definitely suggest you work with an attorney on this.

As to your second question: if you entered the US on a new IMMIGRANT visa, you would automatically get a Green Card - not the old one, but a new one. That's what an immigrant visa does.

If you entered the US on a new NON-immigrant visa (such as tourist or H-1B) then you would be considered a non-immigrant, and it would be automatically considered a affirmative act on your part that you really do not consider yourself a US resident any more. In other words, it would greatly reduce your chances of getting an SB-1.