Spouse overstay - can we make it home for xmas?

[zumier]

Our family has been residing overseas since my company sent me here in the summer of 2002. My wife has a GC and an expired (Jan 2006) re-entry permit and I and our 2 kids are US citizens. We're not living in my wife's home country. Our last trip to the States was 14 months ago. Now we want to go back for Christmas. What are our chances if we show up at the port of entry without an SB-1? 50/50? Anything we can do to improve our chances?

 

[pianoplayer]

Our family has been residing overseas since my company sent me here in the summer of 2002. My wife has a GC and an expired (Jan 2006) re-entry permit and I and our 2 kids are US citizens. We're not living in my wife's home country. Our last trip to the States was 14 months ago. Now we want to go back for Christmas. What are our chances if we show up at the port of entry without an SB-1? 50/50? Anything we can do to improve our chances?

I am sorry if this sounds insensitive, but how on earth did you manage to put yourself in this position? Did you forget about the expiration of the re-entry permit?

She can really have a lot of trouble ---- apply for a SB-1. Since you may be approved or denied, your chances are 50/50 at best.

 

[gordi9]

Contact the US Embassy and request a Transportation Letter. Don't take any risk. They won't let your wife get into the country without this letter. Good Luck!

 

[zumier]

Thanks for the advice. We simply didn't take the whole thing seriously enough. We're off to the Consulate tomorrow to see what we can do.

 

[gordi9]

Call first to schedule an appointment. I don't know which country you are but the Embassy in the UK don't let you in unless you have an appointment letter with an # case. It could be different where you are.

 

[baikal3]

Contact the US Embassy and request a Transportation Letter. Don't take any risk. They won't let your wife get into the country without this letter. Good Luck!

A Transportation Letter is for people whose green card was lost or stolen during a short trip abroad.
See
http://www.immihelp.com/greencard/lost-stolen-greencard-transportation-letter.html

This does not apply to zumier's wife. She does need a returning resident SB-1 visa.

A friend of my brother recently got stuck in Brazil when his green card got stolen at the very end of his 1-year stay there, just when he was about to return to the U.S. By the time he went to the U.S. consulate, a little more than a year from his departure from the U.S. has passed, and they made him apply for an SB-1 visa. As far as I know, it took him several months to get an SB-1 visa there, even though he is a German citizen and his wife and kids are U.S. citizens.

Our family has been residing overseas since my company sent me here in the summer of 2002. My wife has a GC and an expired (Jan 2006) re-entry permit and I and our 2 kids are US citizens. We're not living in my wife's home country. Our last trip to the States was 14 months ago. Now we want to go back for Christmas. What are our chances if we show up at the port of entry without an SB-1? 50/50? Anything we can do to improve our chances?

I think the chances of getting in without an SB-1 visa are pretty slim (certainly much smaller than 50/50). This is a clear-cut case of not satisfying the documentary requirements for a re-entry (either an SB-1 visa or a valid reentry permit, for absences over a year).


I think getting an SB-1 visa approved will not be easy in this case, since your wife has resided and worked abroad for 4 years. That is a pretty long time. Still it is worth a try.


Another option would be for her to start a GC process from scratch. Since you are a U.S. citizen, you can file a new I-130 petition for her and request consular processing. Then, at the end of the process your wife would get a new immigrant visa. This would probably only work if you and your wife actually intend to return to the U.S. now and stay there for good (rather than continue to live and work abroad).


The last option is for your wife to try to come for a short visit to the U.S. on a non-immigrant visa, e.g. a tourist visa. This would have the effect of your wife formally giving up her LPR status (and she might be required to submit a form relinquishing her LPR status first). Moreover, it would probably be hard to actually obtain such a visa, which requires proving a non-immigrant intent, since you are a U.S. citizen and your wife did have a GC in the past. But if your wife is from one of the visa waiver countries, she may be able to get in the U.S. in a non-immigrant status that way.

 

[pianoplayer]

Contact the US Embassy and request a Transportation Letter. Don't take any risk. They won't let your wife get into the country without this letter. Good Luck!

Transportation letters are not appropriate for this purpose ---- they are issued for lost or stolen GCs. The OP's wife must apply for a SB visa.

 

[pianoplayer]

The last option is for your wife to try to come for a short visit to the U.S. on a non-immigrant visa, e.g. a tourist visa. This would have the effect of your wife formally giving up her LPR status (and she might be required to submit a form relinquishing her LPR status first). Moreover, it would probably be hard to actually obtain such a visa, which requires proving a non-immigrant intent, since you are a U.S. citizen and your wife did have a GC in the past. But if your wife is from one of the visa waiver countries, she may be able to get in the U.S. in a non-immigrant status that way.[/QUOTE]

I am very curious why you are advising the OP of this option. Your other two options appear to be sound advice. This option is both illegal and bound to cause more harm than good to her status.

 

[baikal3]

The last option is for your wife to try to come for a short visit to the U.S. on a non-immigrant visa, e.g. a tourist visa. This would have the effect of your wife formally giving up her LPR status (and she might be required to submit a form relinquishing her LPR status first). Moreover, it would probably be hard to actually obtain such a visa, which requires proving a non-immigrant intent, since you are a U.S. citizen and your wife did have a GC in the past. But if your wife is from one of the visa waiver countries, she may be able to get in the U.S. in a non-immigrant status that way.

I am very curious why you are advising the OP of this option. Your other two options appear to be sound advice. This option is both illegal and bound to cause more harm than good to her status.[/QUOTE]


I was not actually advising this option, but just listing it as a possibility. There is nothing illegal about people who had a GC before and then gave it up, to visit the U.S. on a non-immigrant visa. It is possible to formally give up a green card by filing form I-407. See, for example:
http://mumbai.usconsulate.gov/legal_permanent_residents.html

For most people this is probably not a good option, since after having had a green card in the past it will be difficult to obtain a non-immigrant visa. But for people from the visa waiver countries this may be a reasonable option, if they really do intend to live abroad and only visit the U.S. occasionally.

 

[pianoplayer]

I was not actually advising this option, but just listing it as a possibility. There is nothing illegal about people who had a GC before and then gave it up, to visit the U.S. on a non-immigrant visa. It is possible to formally give up a green card by filing form I-407. See, for example:
http://mumbai.usconsulate.gov/legal_permanent_residents.html

For most people this is probably not a good option, since after having had a green card in the past it will be difficult to obtain a non-immigrant visa. But for people from the visa waiver countries this may be a reasonable option, if they really do intend to live abroad and only visit the U.S. occasionally.

Oh, I must have misunderstood you then. You must have intended for her to get a nonimmigrant visa to just come and visit her husband, and then leave again, living separately from then on.

Excuse the sarcasm, but that is most likely not what you were suggesting. There is nothing illegal in having a GC holder renounce the GC, and then file for a nonimmigrant visa, to visit AS A NONIMMIGRANT, i.e. as a tourist or for temporary business etc. etc. YOU ARE ABSOLUTELY CORRECT ABOUT THAT.

However, you suggested this route as a way of getting her back to the US, surely so that she can be with her husband again PERMANENTLY and possibly file for another GC. THIS IS ILLEGAL, since she would be entering the US with immigrant intent on a nonimmigrant visa.

 

[baikal3]

Oh, I must have misunderstood you then. You must have intended for her to get a nonimmigrant visa to just come and visit her husband, and then leave again, living separately from then on.
.

Not exactly, but close. Zumier's original post seems to indicate that both he and his wife are now living abroad and they just want to visit the U.S., as he wrote, "for Christmas".
In that case, if they really only want to be able to visit the U.S. but want to continue living abroad, giving up a Green card and then visting the U.S. occasionally on an non-immigrant visa or visa waiver is a perfectly legal and correct thing to do.

I know some people who did precisely that. In particular a former colleague of mine went back to the U.K after about 15 years of having a GC. He and his family do visit here from time to time under the visa waiver program.
This is a much more legal and correct option for people in this kind of position than trying to preserve the GC status while not actually living here and not intending to come back here for good.

 

[pianoplayer]

Not exactly, but close. Zumier's original post seems to indicate that both he and his wife are now living abroad and they just want to visit the U.S., as he wrote, "for Christmas".
In that case, if they really only want to be able to visit the U.S. but want to continue living abroad, giving up a Green card and then visting the U.S. occasionally on an non-immigrant visa or visa waiver is a perfectly legal and correct thing to do.

I know some people who did precisely that. In particular a former colleague of mine went back to the U.K after about 15 years of having a GC. He and his family do visit here from time to time under the visa waiver program.
This is a much more legal and correct option for people in this kind of position than trying to preserve the GC status while not actually living here and not intending to come back here for good.

My apologies ---- you are indeed correct. I read original post initially, and then came back and just re-read subsequent correspondence. It will be my lesson to always go back to the original post.

Once again, point granted and my apologies.