United States Green Card

Question:

1) Should we file the I-751 and try to have conditions removed, or let her GC lapse?

2) If we let it lapse, how awful of an experience will it be to get it again, and how much hassle might there be in visiting in the interim? In particular, how do we prevent removal proceedings starting, given we're not actually there.

3) What happens if we try to visit sometime between filing the I-751 application and receiving a response, particularly if the visit is after the 2 year expiry date?

Answer:

I've got a question about making an I751 application to have the conditions of residence removed from my wife's green card (she got it after we'd been married for less than a year). Here's the situation:

My wife's green card is valid from the end of Jan 2003. After we'd been in the US for about 9 months, I got unexpectedly funded to do a phd in England, so we returned here in Oct 03, and have been here since. Funding is from a US-based (but not govt) scholarship.

We didn't apply for a reentry visa when we left, mostly since our leaving come on extremely short notice. If all goes well, we'll need to be here in the UK for at least another 2 years.

We've done our best to maintain our legal permanent residence in the US (with my parents) in the interval; all bank and credit card statements, and tax returns go there, plus I do some consulting and use that as my business address. The last time we were there was about (but not quite) 1 year ago. Here are the questions:

1) Should we file the I-751 and try to have conditions removed, or let her GC lapse?

3) What happens if we try to visit sometime between filing the I-751 application and receiving a response, particularly if the visit is after the 2 year expiry date?

From my understanding, the aforementioned is not sufficient in maintaining a permanent residence in the US. The key word here is residence -- having your mail go to a particular US address is not the same thing as physically residing at that address.

According to the US State Dept, "The country of domicile is the country where you maintain your principal residence and where you plan to reside for the foreseeable future." You and your wife live (aka, reside) in the UK, not in the US, and hope to do so for the next two years.

Since the conditional permanent residence was approved in Jan 2003, you should have already applied by now -- two years minus 90 days from the expiration date on the green card.

BUT...

Given that your wife has not maintained residence in the US for over a year, this may not be an option any longer.

From the US Consulate in London website (http://tinyurl.com/5wjly):

How do I maintain status? A Lawful Permanent Resident (LPR) or Conditional Resident (CR) of the United States will maintain status provided he/she maintains a bona fide domicile in the United States and does not remain outside the country for more than one year.

An LPR or CR in possession of a re-entry permit issued by the office of the Department of Homeland Security, United States Citizenship and Immigration Services (USCIS) in the United Sates may remain outside the U.S. until the date the permit expires, which is usually two years from the date of issuance.

What if I have been outside the U.S. for longer than 12 months? An LPR or CR who has remained outside the United States for longer than twelve months, or beyond the validity period of a re-entry permit, will require a new immigrant visa to reenter the United States and resume permanent residence.

A provision exists under U.S. visa law for the issuance of special immigrant status as a returning resident to an alien who has remained outside the United States due to circumstances beyond his/her control. While being granted returning resident status eliminates the requirement that an immigrant visa petition be filed on the individual's behalf with the USCIS, the applicant is required to establish his/her eligibility for an immigrant visa, attend a medical and pay a new set of visa processing fees of $335 and medical fees.

Important: Conditional residents of the United States who failed to file an application to have conditional resident status removed are required to apply for a new immigrant visa. They are not eligible to apply for special immigrant status as a returning resident. The U.S. citizen or lawful permanent resident relative is required to file a new immigrant visa petition on his/her behalf with the office of the Immigration and Naturalization Service.

See above.

From the I-751 instructions:

If this petition is not filed, you will automatically lose your permanent resident status as of the second anniversary of the date on which you were granted conditional status. You will then become removable from the United States.

Again, from what I wrote above, it appears that this option is now gone. However, since I'm not an expert I could be wrong. I suggest consulting a qualified immigration attorney to find out for sure.

You give the correct information from the government and then draw the wrong conclusions. That can confuse people. The OP has written a particularly complicated question.

Your questions are good ones.

The law of abandonment is a tricky area. Based upon your statement, I am of the OPINION that your wife has probably NOT abandoned her residence.

The regulations specifically allow for both of you to file NOW during the 90 day window even though you are outside of the United States. However, both of you WILL be required to return to the US if and when an interview is scheduled for you -- you will have to attend the interview.

The travel documentation issue is a tricky one -- your wife may want to process for an "SB-1" immigrant visa in London.

Also, your fact situation suggests the possiblity for your wife to naturalize under section 319(b) depending on the terms of your fellowship. [One of my offspring is in graduate school on full fellowship and she tells me that part of it is taxable income as "employment."].

You may very well want to contact a US Immigration Lawyer in London. I recommend Kherla Hodgkinson in London. I know that with cost of living and VAT, such a consult is kind of pricey, but IMHO, well worth it.

My intention obviously was not to confuse anyone. Unfortunately, asking for advice on a public frequented by laypeople lends itself to receiving answers like mine -- well-intentioned but not necessarily correct.

Which is exactly why I also suggested the OP contact a qualified immigration attorney, and you were kind enough to give him a local recommendation.

Complicated? Not really. One needs only remember there are rules and regulations in place for the average joe and rules and regulations in place for above average joes and yet more rules and regulations in place for the below average joe.

The wife had the good fortune to marry an above average joe because he earned a fellowship. Hence she is above the law that requires me and Jenney to get re-entry visas before being away from the US for more than a year if we were residents.

See what money and/or the future earning potential of a high income can net you?

Just to clarify a bit, we're currently still in the 90 day window for making our I751 application, the question is about whether or not this is the best course to take. Also, so long as we go back to visit within the next 4 weeks or so, we'll stay under the 1-year limit (barely).

The irony here of course is that the thing I *really* want to avoid is having to apply for a new GC again, since I'm pretty sure that I can't make a DCF claim at the London embassy if I've only got a student visa. Major catch-22 there - we'd have to refile because our PR in no longer in the US, but would have to file in the US since I'm also not a permanent UK resident. Of course I could become a UK PR now to keep the DCF option open. Hmmm...

Is there any obvious reason not to just let the GC expire though? If we could travel back to visit on just a tourist visa waiver, this maybe wouldn't be so bad. Am I missing something obvious here?