Got back my expired green card- question on eligibility for citizenship--urgent

[harypatil]

Hi,

I have a question regarding eligibility regarding citizenship. Please see below whole scenario for better understanding of my case and let me know your thoughts, if you think there is any scope for it.:


My whole family got a green card in 1991 through family based file(based on file my uncle did). We all came in 1991 and stayed for 3 months and went back to India and never came back to USA.

Then, I came to USA in December 2007 on F1B (Student) visa.

In 2008, I met an attorney in new york and he said I can reinstate your old (expired) green card and he fill form I-90. I have been called for finger print and tape a one year validity sticker on the back of my old GC, said you can start using this until you get your new GC. Got my new green card with 10 years validity in January 2009(Having date from 1991 for permanent resident since).

In 2009 November I visited India and while returning an officer at Newark Inl. Airport ask me how I have two status (student and green card). I explain him like my attorney applied for reinstate of a green card and I got it back. He let me in with a stamp of PR in my passport.

I visited India back in December 2011 and haven't been asked any question at JFK Airport while returning back.



Am I eligible to apply for a citizenship?? As, I am not sure how I got my GC back after 17 years of gap between my first entry to usa on GC and 2nd entry on F1B student in Dec 2007.


Any help will be appreciated.

 

[Jackolantern]

Filing I-90 didn't reinstate your green card, it only renewed the old green card, which was possible because the person who processed your renewal at USCIS didn't know you were gone for so long. You are holding a green card that was issued in error.

Did the attorney know you were gone for more than a decade?

This discrepancy will be uncovered during the scrutiny of the citizenship process, and you will be denied. At best you might be able to reinstate your student status. At worst, you'll be stripped of all status and get deported.

 

[König]

Yep, not only will they not approve the N-400, they will cancel the GC and F1 as well (because it was not used). It would be best to reinstate the F1 status (if possible), as Jackolantern pointed out.

 

[CalGreenCard]

This discrepancy will be uncovered during the scrutiny of the citizenship process, and you will be denied. At best you might be able to reinstate your student status. At worst, you'll be stripped of all status and get deported.

I would be more optimistic than Jackolantern and Konig. The new green card was issued without any fraud involved--the I-90 form does NOT ask about time spent outside the USA. My understanding is that, if a GC is issued in error but without any fraud by the holder, it can only be rescinded in the first five years. After that, one might be permanently barred from citizenship but there is no risk of losing the GC (unless new grounds for revoking the GC emerge).

To be safe, I'd wait until Nov 2014--five years after the first admission as a GC holder--to apply for citizenship. This is because, since the OP entered in Dec 2007 as a student, and the new GC was not issued as an AOS, the OP might have been considered to be in student status until being admitted in Nov 2009. However, in Nov 2009 the OP was clearly admitted as a PR, so five years after that date it will be safe to apply for citizenship.

The best case is that the OP will become a USC.

The worst case is that the OP will keep the GC but be permanently unable to become a USC. However the OP can keep the GC unless/until a new reason to lose it emerges (a new stay abroad of >1-2 years or a criminal record).

 

[CalGreenCard]

Did the attorney know you were gone for more than a decade?

As the old GC must have expired in 2001 and the OP didn't return (as a student) until late 2007, the attorney, unless very, very incompetent, must have known that the OP was, at least, absent for more than 6 years--usually enough to trigger the loss of the GC.

 

[König]

The GC was clearly issued in error because the OP lost the permanent resident status one year after leaving the US (more than twenty years ago). When the issue is uncovered, the GC WILL be taken away as if it never existed. Five year rule will not work in this case because the GC should not be issued at all in 2009. The OP will not be able to appeal this revocation because there will be no grounds to appeal.

 

[König]

As the old GC must have expired in 2001 and the OP didn't return (as a student) until late 2007, the attorney, unless very, very incompetent, must have known that the OP was, at least, absent for more than 6 years--usually enough to trigger the loss of the GC.

Dude, the loss of permanent residency is triggered after 1 year of absence unless a person gets a re-entry permit. After the status is lost, it is possible to recover it by applying for an SB-1 visa (returning resident visa), but you should be able to show that your absence was beyond your control (family emergency or something similar). A person cannot get an SB-1 visa after 17 years absence. Either way, the GC was issued in error, that is the bottom line.

 

[CalGreenCard]

Dude, the loss of permanent residency is triggered after 1 year of absence unless a person gets a re-entry permit. After the status is lost, it is possible to recover it by applying for an SB-1 visa (returning resident visa), but you should be able to show that your absence was beyond your control (family emergency or something similar). A person cannot get an SB-1 visa after 17 years absence. Either way, the GC was issued in error, that is the bottom line.

Note that according to the following site, there is another option available besides the ones you mention: the CBP officer at the POE after a long absence has the discretion to grant a waiver:

Your Green Card Is at Risk if You Stay Outside the U.S. Over 6 Months

Note the following statement about a third of the way down:

'Yet she may apply to a CBP officer at the port of entry for a “waiver” of the green card requirement by proving that the stay abroad was temporary and that there was “good cause” for not returning within one year. '

Clearly this, in effect, is what happened in this case. The CBP officer was clearly aware of the situation because the OP was asked about it--yet made the decision to admit the OP as a permanent resident.

 

[cafeconleche]

The OP needs to tell us exactly what he told the the officer when he first re-entered the US with his "re-instated" GC. Was the epic absence mentioned, or just that he had been out longer than 6 months/1 year...

 

[Jackolantern]

Clearly this, in effect, is what happened in this case. The CBP officer was clearly aware of the situation because the OP was asked about it--yet made the decision to admit the OP as a permanent resident.

The officer must have been unaware of the long absence. The officer accepted the story about reinstatement without knowing the full story.

Naturalization WILL NOT be approved, period. LPR status was gone years ago, and that CBP interaction isn't enough to the preserve the green card through the scrutiny of the naturalization process.

 

[König]

Note that according to the following site, there is another option available besides the ones you mention: the CBP officer at the POE after a long absence has the discretion to grant a waiver:

Your Green Card Is at Risk if You Stay Outside the U.S. Over 6 Months

Note the following statement about a third of the way down:

'Yet she may apply to a CBP officer at the port of entry for a “waiver” of the green card requirement by proving that the stay abroad was temporary and that there was “good cause” for not returning within one year. '

Clearly this, in effect, is what happened in this case. The CBP officer was clearly aware of the situation because the OP was asked about it--yet made the decision to admit the OP as a permanent resident.

A CBP officer would never authorise entry if he/she knew that the OP "got back" the GC after 17 years of absence. Was the OP taken to the secondary inspection area and questioned? They do question a lot there and they try to get to the bottom of every situation. I know because I had to go there one time, and I saw many interactions between the "secondary" CBP stuff and unfortunate travellers. I simply refuse to believe that they had a whole picture and still let the OP in on an LPR status. Besides, from what the OP stated, it seems like he/she did not have to go to the secondary at all, which means that that particular officer did not know the details.

 

[Triple Citizen]

Perhaps the OP's attorney knew that the OP was a minor when he was taken back to India in 1991? Hasn't this forum seen a case a few years back when a minor was not held responsible for abandonment of PR status?

Naturalization WILL NOT be approved, period. LPR status was gone years ago, and that CBP interaction isn't enough to the preserve the green card through the scrutiny of the naturalization process.

 

[Jackolantern]

Perhaps the OP's attorney knew that the OP was a minor when he was taken back to India in 1991? Hasn't this forum seen a case a few years back when a minor was not held responsible for abandonment of PR status?

The OP spent 3 months in the US since green card approval, followed by 16 years outside, with the entry at the end of the 16 years being with an F1 visa. Being a minor doesn't overcome that. If very young at the time, say 3 years old or younger, the residential ties (or lack thereof) would be imputed based on what the parents did. Or if the OP left at a later age, over a year would have been spent outside the US as an adult.

 

[Triple Citizen]

For the record, I agree with the rest here that the OP's PR status was long gone. I was just trying to figure out what along what lines the OP's attorney was thinking

The OP spent 3 months in the US since green card approval, followed by 16 years outside, with the entry at the end of the 16 years being with an F1 visa. Being a minor doesn't overcome that.

 

[Jackolantern]

For the record, I agree with the rest here that the OP's PR status was long gone. I was just trying to figure out what along what lines the OP's attorney was thinking

The attorney was thinking $$$. He gets paid regardless of the outcome of the case.

Or perhaps the attorney knew about USCIS incompetence and figured they'd approve the I-90 without looking at the relevant facts. And he was right. But for naturalization it won't be so easy.

 

[Triple Citizen]

A good litmus test would be for the OP to approach the same attorney and ask for representation with regards to his N-400

The attorney was thinking $$$. He gets paid regardless of the outcome of the case.

Or perhaps the attorney knew about USCIS incompetence and figured they'd approve the I-90 without looking at the relevant facts. And he was right.

 

[CalGreenCard]

A good litmus test would be for the OP to approach the same attorney and ask for representation with regards to his N-400

I'm going to need to beg to differ with the other very experienced posters on here. There's no question that Triple Citizen, Jackolantern and Konig have common sense on their side--but by my reading of the law, they don't have the law on their side. Simply put, although there are standard procedures that kick in after 6 months, 1 year, and 2 years that put a GC at risk, there is nothing in the law that states absolutely, definitively, that a GC is lost after some definite period.

I agree that going back to the original attorney would be a good litmus test.

There's a reason why the GC is never absolutely lost until it is explicitly taken away or given up. I can't find the reference right now but there was a legal case involving less happy circumstances. An Iraqi citizen was accused of involvement in terrorism. In particular, he was charged with some kind of crime--stealing US secrets or some such thing--that only US citizens or permanent residents could legally be charged with.

He was not a US citizen--everyone agreed on that. However, years earlier he had been a GC holder. He left the US and returned years later with his GC--alleged to plan some kind of terrorist acts. He was let in with his not-yet-expired 10 year GC but everyone agreed he had been out for much more than 2 years.

His legal defense was that he could not be guilty of this crime, since legally only US citizens and permanent residents could be guilty of the crime he was charged with. He claimed he was NOT a permanent resident. He claimed that the >2 year absence meant he was no longer a permanent resident. Maybe he shouldn't have used his now-invalid GC to get back in; maybe he shouldn't have been let in; maybe this meant he was removable; but (he claimed) he could not be criminally guilty of the crime he was charged with.

Unfortunately I don't recall the outcome of the case. But that case would also be a good litmus test, even though the circumstances weren't happy.

 

[udacha6]

I mentioned on this website that my husband's GC case took eight years to approve, partly because of the FBI check delay and partly because of his previous LPR status in US as a minor.

His parents worked in US but decided to go back to their home country when he was 12. During the GC interview he was asked why he applied for a separate GC when he could've filed for a returning resident visa because he lost his first LPR status due to the circumstances beyond his control (being a minor) and the fact that he returned to US when he was a young adult (24?) and started a second LPR process proved that he didn't abandond intention to stay in US. That was extremely difficult to hear because we had to wait for eight years to get to the same point he was at when he entered US on B1/B2 visa ten years earlier and we had to endure a long and winded process of applying for LPR through my empoyment.

The fact that harypatil left US involuntarily and returned to US when he was able to should qualify him for SB-1, shouldn't it? SB-1 visa applications don't have an expiration date - supposedly you can always apply if you can prove "reasons beyond control", which is easy when you are a minor.

Conditions for returning visa resident (from uscis website):
- Had the status of a lawful permanent resident at the time of departure from the U.S.;
- Departed from the U.S. with the intention of returning and have not abandoned this intention; and
- Are returning to the U.S. from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible.

 

[Tazmania]

The application is screwed by the time when the thread starter has to answer the questions for tax returns and registration for selective service.

All other things are pure speculation.

 

[Jackolantern]

I mentioned on this website that my husband's GC case took eight years to approve, partly because of the FBI check delay and partly because of his previous LPR status in US as a minor.

His parents worked in US but decided to go back to their home country when he was 12. During the GC interview he was asked why he applied for a separate GC when he could've filed for a returning resident visa because he lost his first LPR status due to the circumstances beyond his control (being a minor) and the fact that he returned to US when he was a young adult (24?) and started a second LPR process proved that he didn't abandond intention to stay in US. That was extremely difficult to hear because we had to wait for eight years to get to the same point he was at when he entered US on B1/B2 visa ten years earlier and we had to endure a long and winded process of applying for LPR through my empoyment.

The fact that harypatil left US involuntarily and returned to US when he was able to should qualify him for SB-1, shouldn't it? SB-1 visa applications don't have an expiration date - supposedly you can always apply if you can prove "reasons beyond control", which is easy when you are a minor.

Even if the OP could have successfully obtained an SB-1 visa, that's not relevant here because the OP did not file an SB-1 application, but instead got a tourist visa and applied for green card renewal once in the US.

The SB-1 visa was implemented for a purpose. If returning to the US as a permanent resident after a multi-year absence could legitimately be done by using a tourist visa, that defeats the purpose of the SB-1. The OP bypassed the SB-1 process, and would not have been allowed to enter as a permanent resident if the officer at the airport knew the full story.

But during the scrutiny of the naturalization process, they will uncover the full story and deny the naturalization application, followed by possible removal proceedings.