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Out of US for 15 months advic

M

mushy11

Registered Users (C)
Hi! I was successful in the 2013 Lottery and travelled to the US in September of 2013 for a month to find an apartment, (hopefully) line up a job, sort out bank accounts, drivers license etc before I came back to Australia to tie up loose ends here before making the permanent move.
I was not able to find a job while there in September (I have a small business so was still self sufficient and not worried) but when I travelled home I suffered a major & unavoidable financial blow and was not able to get back to the US when I had hoped.

It is still affecting my finances and my business and I was wondering if I had any options left to try and retain my green card. As I had left the US with the intention of moving back around 6 months later, I did not apply for a reentry permit (this detail still keeps me awake at night. I've never regretted anything this much!). I understand there is a SB visa related to green card reentry, but I am concerned it will not apply as my issues were financial and they don't seem to take much sympathy upon those kinds of issues, if I understand correctly?

I am still not in the same place financially as I was before, but if there is any hope that I could still use my green card I will anything in my power to make it work.

I am sorry to anyone who thinks I am ungrateful for my card - I know how lucky I was to receive it and I kick myself daily for not preparing better.
I regret my choices but desperately cling to hope that I may be able to salvage it. Any and all advice is so gratefully received, thank you for reading!
 
Don't despair. You still have a pretty good chance of keeping your GC. I have seen cases where people have been out of US for 3-4 years and still had no issues.Although I have heard of cases, where 5 months was causing questions. The sooner you return though, the better. The main criteria is if you had "abandoned" your intention to make US your permanent home, which you haven't. When you enter US again, the Border Officer may or may not give you a hard time. The first thing is try and convince him that you had every intention to return, but due to circumstances beyond your control, were not able to. Some evidence may be useful here. If he buys it, then that's it. If he doesn't, ask to be referred to a immigration judge for the final decision. Once you are in, get a lawyer and fight your case. That would be my advice, I'm sure others will chip-in with their experience. One thing I would say is that if you buy a one way ticket, that is a good indication of intent to stay.
 
Yeah, agree with Martin. Try re-entering ASAP - you might be ok. If they do say they believe you gave abandoned your GC they will still let you in to argue your case in front of an immigration judge. So, get your self setup to stay, get your money sorted and egg over there.
 
I'm not sure I agree with the above comments, and I have never heard of anyone being out for 3-4 years and having no problem going back in (without a re-entry permit). After a 12-month absence, you are deemed to have abandoned your green card. Personally I would not buy a one way ticket and try talk my way back in on this, especially if you are struggling financially and need a lawyer to help you remain? I am also not convinced that the officer will let you in to plead your case before an immigration judge if you have been absent longer than a year. I think your best bet is to try get a SB visa.

Incidentally, did you file returns with the IRS while you were out the country? This will be one of the main things they look at re intention to return.
 
Well, I know of two cases. First one was absence of 3 years due to a medical condition. The lady in question had a medical certificate which showed she could not travel. The second one I know of personally, was another lady who got her GC through marriage to a US citizen, then got divorced, returned to Russia for 5 years, and then came back. Told the INS Officer she didn't know about the rule and was let in. Back in London many years ago, I also knew another lawyer, who had a GC through marriage with a US citizen, and would go to US for visits with her once a year, and told me he only occasionally had the odd office giving him the 3rd degree, but not always.

The point being of course that you need to show you did not intend to stay out of US and your absence was not indication of abandonment.
Technically, the INS Officer can confiscate the GC at the POE, but that is highly unusual and controversial. This power is very rarely used unless the returning resident is also undesirable on other grounds such as criminal behaviour or has departed from the United States while under legal process or may become a public charge!!. You need to be careful here.

"Lawful permanent residents, upon every application for admission at a U.S. Port of Entry, must produce a valid document entitling him to re-enter the United States as a lawful permanent resident. Normally, such a document takes the form of either an alien registration card or a re-entry permit. Neither document, however, confers an absolute right to re-entry or guarantees admission to the United States. The lawful permanent resident must actually intend to make the United States his primary domcile/home as demonstrated by the above referenced factors."

Once a lawful permanent resident makes a "colorful claim" to such status, the U.S. INS has the burden to establish by clear, unequivocal, and convincing evidence that the status has been abandoned. Hence, if the U.S. INS determines that a absence abroad was not temporary, that the permanent resident has few, if any ties, to the United States, it may conclude that the foreign national has abandoned his lawful permanent resident status and is not entitled to re-enter the United States as a returning resident, notwithstanding the presentation of a lawful permanent resident card or a re-entry permit. Hence, a lawful permanent resident may have his alien registration card confiscated, be denied entry, and forced to return to his last country of departure.

I can't see here that the INS Officer can discharge the burden prima facia here, and the case would need to be decided by a judge.

Given the circumstance here, it is more likely, you will be placed into formal removal proceedings and able to present your case to an Immigration Judge for review.
Bottom line, its your call, and there are no guarantees.
 
Thank you SO SO much for your replies everyone! That helps a lot.

I have one last question - if I am denied entry and somehow in the future strike gold and win the lottery again, will it be likely I can receive a second green card or be denied as I already received one and 'abandoned' it?

EDIT: And also.. does anyone have thorough knowledge of the SB-1 visa?! I have tried to research it but get a lot of conflicting information. Is it just a 'visa' to get me into the country and then I retain my green card as normal or, if successful, does it change my LPR status? I was considering applying for SB-1 as the full year out of the US had passed, but I was worried I would be required to fly back over as soon as it was approved (if successful), and I was not in any way ready for that.

Thanks again for any help.
 
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To answer your questions in order:
Yes you can apply again, whether through DV or other means. It will not result in automatic denial, as long as you are still eligible at the time.

On your second point, it sounds like you should sort your circumstances out first before making any application, particularly your financial situation as the officer would still have to be satisfied that you pose no risk to being a public charge.
There are always two interviews. The first one's main focus is on your intent to stay in the United States and the reasons and circumstances that prevented you from returning. This step is simply determining if you qualify for the SB-1 visa. If the officer finds that you do qualify for the SB-1 visa, you will then be scheduled for a second interview. This second interview will be to determine if you are now eligible for the immigrant visa. SB-1 visa applicants are subject to the same application processing fees, documentary requirements and medical requirements that apply to all immigrant visa applications. So it won't be as quick as when you got your DV. The SB-1 process depends on the processing times of the particular U.S. Embassy. Some cases have been completed in as little as two to three months, but often longer, and when you get it you have the same 6 months time to get to US. It won't be the case that you need to go the day after.
 
You are absolutely right Martin, I do need to straighten out my circumstances first. And quickly, hopefully! Thank you so so much for your help, I really appreciate it!
 
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