10 year ban question

T

Tazmania

Registered Users (C)
The case is as follows:

Girlfriend was married to a US citizen and got her conditional GC 1/2007. Marriage did not work and
she left the US 4/2007 and never returned. She keot the GC u n her drawer.

Last week she did ESTA and it was denied. She made Iinfopoint in Frankfurt, returned the GC and was told she
has a 10 year ban until 2019.

Don't get it. That would only make sense when someone did not remove conditions and stay in the country.

Any idea about best steps she can do?
 
She needs to prove that she left USA in 4/2007, so she has never been out of status. Since the bar ended in 2019, the triggering event must be in 2009, precisely two years after she got conditional LPR. Because she never converted her conditional PR to LPR, without any proof that she was no longer in country, USCIS assumed she stayed out of status all these years.

She needs to dig out her old passport showing the immigration stamp of arrival in the other country. She would also need to find the airline reservation info, if she still has the boarding pass it would be even better. Find anything that can prove that she is staying in another country, like bank account, apartment lease, driver's license, etc. I'm not sure about the exact procedure to appeal/reconsider the bar, but she should be able to do it using all these documents.
 
Your friend became out of status in February 2009 when she failed to Petition for Removal of Conditions on her 2 year Conditional Green Card. She has been out of status for 4 1/2 years. Conditional Residency is not permanent residency.

Even if she digs up her passport showing she left in April 2007, it only proves that she abandoned her residency. Had she been granted Lawful Permanent Residency (10 year Green Card), this would have been a slightly different issue.

In any case, she should not have used the ESTA system in the first place. If her intention was to visit the USA and not live here permanently she should have applied for a visitors visa, although she may have a hard time convincing officials that she does not intend to stay, her use of the ESTA system could have been seen as her trying to use the backdoor to get into the country permanently.

Seek the advice of an immigration attorney for this although I suspect that the time lapse of 4 1/2 years would do more harm than good but anything is possible although ignorance of her responsibilities when she was a Conditional Resident is not a good defense.

I hope things work out for her.
 
Abandoning residency is not punishable by a 10-year bar, but overstaying for more than 365 days is. She got the bar because there's no record of her leaving the country, which is understandable because when she was LPR she didn't have to surrender her I-94 at the airport, and basically that was the only official way to track one's departure. An immigration officer usually take your I-94 after a successful LPR interview. Absent a departure record they assume the worst, that she overstayed since 2009.

Whether she can get a visa after she clears the erroneous bar is a different subject.
 
asPapi said:
Your friend became out of status in February 2009 when she failed to Petition for Removal of Conditions on her 2 year Conditional Green Card. She has been out of status for 4 1/2 years. Conditional Residency is not permanent residency.
Click to expand...
You can't be out of status if you're not in the U.S.
 
Why shouldn't she have done ESTA? In my opinion her GC was terminated automatically in 2009 so she is technically a visitor
again. BTW she is divorced from her husband.

From my point of view USCIS put illegal a ban on her coz they lack
of any departure control.
 
I sympathize with your situation however I am sure your goal by posting this problem is to explore if there is any way that you can get your girlfriend back to the U.S. My advice is not to dissuade you but to help you see the problem form USCIS's point of view, hence my first response to your post.

What your girlfriend should have done when she left in April 2007 was to have visited the U.S. Embassy in her country and filed Form I-407 which is the official and right way to give up a Green Card without it affecting her chances of visiting the United States in the future especially since her I-94 must have been retained at the interview she had for the Green Card, which is why she would not have had an official record of departure.

Since no Form I-407 was filed, USCIS had no way of determining whether she had left the country, and they have no obligations to confirm that she had left anyway, hence the 10 year bar.

I had recommended strongly that you seek the services of an attorney because if your girlfriend did leave the U.S. in April 2007, and the USCIS does not believe she did since no Form I-407 was filed, then gather evidence as Hexa has suggested and retain the services of an attorney who is better placed to advice you on whether there is any procedure to appeal the ban in her circumstances.

Otherwise, for reasons mentioned earlier, she may have inadvertently contributed to the decision by the USCIS to institute the 10 year bar by not filing Form I-407 which would have avoided the issue of a ban in the first place.

Also, the reasons I have explained above apply to why using ESTA was not a good idea in her situation.

Keep you fingers crossed and I wish you both well.
 
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I sympathize with your situation however I am sure your goal by posting this problem is to explore if there is any way that you can get your girlfriend back to the U.S. My advice is not to dissuade you but to help you see the problem form USCIS's point of view, hence my first response to your post.
Click to expand...
It's not a girlfriend from a relationship. She has no intent to return to the U.S. other than for a short vacation to visit me and my wife.
 
Tazmania said:
Why shouldn't she have done ESTA? In my opinion her GC was terminated automatically in 2009 so she is technically a visitor
again.
Click to expand...

Her GC was terminated in 2009, but they think she continued to remain in the US illegally because they don't see a record of when she left. She should have surrendered the green card at a US consulate by 2009, but she didn't.

At this point it won't be possible to get the ESTA. She'll need to apply for a tourist visa at a US consulate where she can give a face-to-face explanation and present evidence that she left the US before her GC was terminated in 2009. Such evidence would include any arrival stamps in her passport (even if it's not for an arrival in her home country) that are dated between her 2007 departure date and the GC expiration date in 2009. Other evidence includes documents showing that she was employed or studying outside the US during that time frame, receipts from hotel stays outside the US, and airline boarding passes.

Even if she doesn't have the boarding pass for the trip when she left the US, boarding passes showing other travel in that 2007-2009 time frame are also useful for proving that she was outside the US at that time. And if she knows the exact date, airline, and which US airport she used when departing the US in 2007, that may enable the consulate to look up the flight manifest info in CBP records.
 
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