...and now can I give this back??!!

H

husaisa

Registered Users (C)
I am a US Citizen residing in Mumbai on an expat assignment in India. My wife is a Canadian citizen with a US Green Card. She has been out of the US from Dec16, 2008. She got her GC in Oct'08
The intent is still intact - which is to become a USC but the strain of managing an infant child and potentially travelling to US back and forth to "maintain" the GC is too much. The ideal situation is to maintain the GC without the effort (obviously!!) but I am not averse to the idea of returning the GC (since she is Canadian, entering US will not be a big deal... or is my optimism misplaced...) So unless there is another way you gurus can come up with, I would like to know what the process is to return the Green Card at the Mumbai consulate. Is there someplace (a webpage) I can get more details about it? (Couldn't find it...and searched for a thread to get this info too...so apolgies if this is duplicative)
Cheers!
Husaisa
 
Form I-131
apply for a reentry permit (385 USD) so she can stay 2 years and will be allowed to come back in USA with no hassle.
 
But that entitles her to simply to come back to US, which she anyway can being a Canadian citizen. I guess the usual concern in the GC maintenance area is the ability to clear immigration. Don't think that would be applicable here...or will it?
 
husaisa said:
But that entitles her to simply to come back to US, which she anyway can being a Canadian citizen. I guess the usual concern in the GC maintenance area is the ability to clear immigration. Don't think that would be applicable here...or will it?
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If she can anyway enter US (being a canadian citizen), then the only other benefit is to maintain the residency requirements towards the USC (claim time already spent in US towards USC). Given that she has spent 2 months in last 12 months since getting GC, there is not much time to re-claim. I would say go ahead and surrender.
 
yeah...that is what I thought.... I guess when and if she goes back to work (if there are jobs in the near future that is!!), she can get a TN visa if need be.. thanks for your input though. Much appreciated..
 
husaisa said:
But that entitles her to simply to come back to US, which she anyway can being a Canadian citizen.
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The reentry permit would enable her to stay outside the US up for to 2 years* and still keep her green card (although staying outside the US that long will delay her eligibility for US citizenship).

Being a Canadian citizen without another visa or status would only enable her to enter the US as a visitor, unable to work or study. Once you give up your Mumbai residence and move back to the US, if she doesn't have a green card she may be refused entry to the US as a visitor because she is married to a US citizen who no longer lives outside the US and they will expect her to attempt to re-immigrate. She may even be refused a TN because of the immigrant intent issue.

If your move to India is really permanent, and not merely a short-term assignment, it would make sense to surrender the green card via the I-407 process, and reapply for it if 5 or 10 years down the line you decide to move back to the US. Otherwise, if this is just an assignment for 1 or 2 or 3 years, she should go back to the US to apply for a reentry permit so she can return with the green card when your short term assignment is over. She can get a second reentry permit if necessary.

If the baby was born outside the US, I hope you have already registered the birth with the consulate and secured proof of the infant's US citizenship. Many people do not do this, and then it becomes a problem later to obtain or prove US citizenship for their child.


*in reality it's a bit longer than 2 years, because the permit usually takes 3-6 months to get approved, and they start the 2 years from the approval date, so the end result is being allowed to stay for 2 years plus 3 to 6 months.
 
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Another option is for her to obtain expedited US citizenship, if she qualifies based on your employment. The LPR spouse accompanying a US citizen overseas may be eligible for expedited citizenship under section 319(b) if the US citizen spouse is working for the US government or certain other types of organizations. See http://www.ilw.com/articles/2006,0525-mehta.shtm
 
Being a Canadian citizen without another visa or status would only enable her to enter the US as a visitor, unable to work or study. Once you give up your Mumbai residence and move back to the US, if she doesn't have a green card she may be refused entry to the US as a visitor because she is married to a US citizen who no longer lives outside the US and they will expect her to attempt to re-immigrate. She may even be refused a TN because of the immigrant intent issue.
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Even entry on tourist status in such a case would be doubtful. Cdns do not get a free pass into US, unless they have strong residential ties outside US and no immigrant intent, or some other US immigrant or non-immigrant status.
 
How long you both intend to stay in Bombay? That is the key here.

husaisa said:
But that entitles her to simply to come back to US, which she anyway can being a Canadian citizen. I guess the usual concern in the GC maintenance area is the ability to clear immigration. Don't think that would be applicable here...or will it?
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more...

First of all thank you for the discussion above. I was in a flight (to NY) so could not respond.
I have an OCI and she a POI. My daughter was born in the US and has a US passport and a POI. To get to the brasstacks then...I am in India for at least the next 5years. . I will explore the possibility of a longer (10 yrs) stay in India at that point. For now, let us just assume that 5 years is when I plan to get back to US. So, this reentry permit gives her the chance to keep the GC fresh for 2 years. But at that point she will again have to start doing the 6 month visit thing (Correct? or can she apply for another of these 2 year extensions)... I may have another baby by then, so that would be a trouble... (and I work for a bank, so, no, I don't think she qulaifies for an expedited process).
But I am curious as to why you say that her immigrant intent will prevent her from visiting US? I would think that by returning the GC, we are keeping are intentions on record and clear. Let me ask you this - I have property in the US and have bank accts etc where she is the beneficiary. That in itself would argue for a immigrant intent right away!! Another, can she reapply for a GC lets say 10 years down the road? The standard response is that it is difficult to get. Applying the standard "Intention" test, it should be the other way. The intent has been always straight and on record.
I got a response back from the Mumbai consulate, which says that she can apply for a returning resident visa after 364 days are over. But I believe that application is done in the US (although the note from ACS does not say so) . Is that correct?
Thanks again for your time and consideration....I have found that spending time and thought on this forum equips one to help out a lot of other people one comes across.
Cheers!
Husaisa
 
Sorry for the simplistic response last time, I was worried whether you left the board without seeing these other comments.

You can always re-apply for a re-entry permit. However, they are becoming strict with these. There are anecdotal stories of them refusing a second permit, or giving for 1 year only. However, these things change over time, so who knows how the situation will be 2 years down the line.

The intent question becomes relevant since A) she has immigration intent, and B) if she enters with Canadian passport, it is likely she is entering as a tourist (from what I am hearing). A and B do not go along with each other. Whether they evaluate the immigration intent is another question.

You can always re-apply for her GC. This is one of the rights / privileges you have as a citizen right? The process might be painful or long, but they can not deny it if there is nothing wrong with the case.

And last (non legal stuff), if she is not planning to travel at all for 5 (or 10 years), the best bet is to surrender. However, the challenge in life is that plans change due to unexpected events, and that should be a factor (maybe small) in any decision making.
 
I am coming round to the point of view that I should get the visa and then have postpone the decision another 2 years.... in banking that is a lifetime!!!....although, here is another interesting proposition.... I work for an I bank, which was part of the bailout package. So the US govt has a stake in it. being that I am overseas in a role where it can well be argued, protect the interest of the US taxpayer, would that make my spouse eligible for expedited processing? Long shot, I know, but is that a shot at all....
 
husaisa said:
But I am curious as to why you say that her immigrant intent will prevent her from visiting US? I would think that by returning the GC, we are keeping are intentions on record and clear.
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If she officially surrenders her green card and you are living outside the US, the immigrant intent issue should not be a problem.

However, once you move back to the US, she will want to join you to live in the US again, right? That's immigrant intent! At that point in time, she would be married to a US citizen who is living in the US, so she's going to have a hard time trying to convince the officers at the port of entry that she doesn't intend to immigrate. You'll have to file for her to get another green card, and have her wait outside the US for however many months it takes.
I got a response back from the Mumbai consulate, which says that she can apply for a returning resident visa after 364 days are over. But I believe that application is done in the US (although the note from ACS does not say so)
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The Returning Resident visa must be filed when outside the US. It is for permanent residents who have stayed outside the US for more than a year (without a reentry permit) due to unexpected circumstances. You'll have to convince the consulate that the trip was intended to be less than a year, and show that circumstances beyond her control extended it beyond a year. If the application is refused, the green card is essentially dead, so you should not plan to obtain this visa in advance; it is a last-resort provision.
 
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If the litmus test for the returning visa is exigent circumstances, she will fail it right away as I am on an expat assignment for 3 years and knew it before we started off. Of course an argument can be made that she should have made trips to keep her visa current, but with an infant with her, that gets difficult. Essentially her chances of the Returning Resident visa become pretty slim.... so here is the plan (for all of your combined pleasure to poke holes into ....)
I do nothing right now. When it comes time for us to move back finally, she applies for a Returning Resident visa, pleading her case (which will probably get rejected). At that point she returns her GC and I reapply for her.(The last time it took her 6 months to get a GC.)... Also in the interim I ensure she does not go to the US visiting at all or at a minimum does not travel on her GC (she can enter it as a Candian). Because if she tries to travel on her GC they will take it from her and her shot at the returning resident visa)....
wow! this is becoming quite a Hitchcockean adventure.... I think they should create a video game (or a TV series) on this stuff.
Cheers!
HUsaisa
 
Oh and another thing, in the US embassy reply to me they state (pretty mechanically) that if a person is out for 365 days they lose the GC.... can it then be presumed that if my wife makes a trip of 10 days every year, for say the next 5 years, she is OK? Of course she still will be quite far from a citizenship, but her GC will stay alive...
 
husaisa said:
Also in the interim I ensure she does not go to the US visiting at all or at a minimum does not travel on her GC (she can enter it as a Candian). Because if she tries to travel on her GC they will take it from her and her shot at the returning resident visa)....
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Attempting to enter as a visitor using her Canadian passport is likely to lead to bigger problems if her green card is not officially surrendered first. Chances are they will make the connection and see that her last known status was as a permanent resident, and they'll ask where is her green card, and the long interrogation in the back room will begin.
Oh and another thing, in the US embassy reply to me they state (pretty mechanically) that if a person is out for 365 days they lose the GC.... can it then be presumed that if my wife makes a trip of 10 days every year, for say the next 5 years, she is OK?
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She can keep that up only until an officer notices the travel pattern and gives her a warning or demands that she sees an immigration judge. Many people are able to get away with it for 2 or 3 years, but once it goes beyond that, the chances of getting noticed increase and the chances of successfully pleading her case decrease. Taking a trip longer than 1 year without a reentry permit automatically puts the green card in jeopardy, but keeping each individual trip under 1 year does not mean the GC is safe.

Don't play games with US Immigration if you want your wife to eventually return to the US to live. Do things by the book and don't give them a reason to make things difficult for her when she's ready to move back. If you're sure about being in India for at least 5 years, surrender the card now with the I-407 process. If you're not so sure, have her apply for a reentry permit next time she's in the US; that will buy another 2 years until you make a final decision.
 
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jackOlantern, there is no "playing games" here. The intent is all above board. I am a very by the book person - and need everything on record. And please do not eulogize the USCIS. There is no high IQ at work there at all. I am sure you have dealt with them enough to understand. At the moment, I think I am in favour of postponement for 2 years... which, my friend, is certainly not "playing games".
 
Taking a trip back to the US once a year to stay for just 10 days (without a reentry permit), and repeating that year after year, would be seen as "playing games" by the first officer at the port of entry who notices the pattern. Applying for a reentry permit would be doing it "by the book".
 
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