Surrender green card? Apply for re-etry permit? Apply for citizenship?

[yoyomir]

My sons and I (one is a US citizen, one a permanent resident like me) left the U.S. almost three years ago to live in Germany for a while. At the time we left, my older son and I had been permanent residents for four years. At the time I wasn't aware of re-entry permits or any of the laws around U.S. citizenship (otherwise I would have stayed in the U.S. longer and applied for citizenship before leaving). We also thought that we were only going to be in Germany for a little while, so we just left. Three years later we are still in Germany, but have been able (so far) to successfully keep our green cards by coming back to the States every year and staying for a few weeks. Last year the immigration officer at our port of entry started asking me all kinds of uncomfortable questions and told me that technically, he could take our green cards away from us because we have abandoned our U.S. residence. He told me he wouldn't take it this time, but advised me to apply for a re-entry permit so I wouldn't have problems the next time. So I called an immigration lawyer and she told me that a re-entry permit would most likely be denied because I have already been out of the country for too long (at that time it was two years - with yearly visits to the U.S.), and that I didn't qualify for citizenship for the same reason...
This summer I wasn't able to return to the U.S. because of health issues. My sons did travel, however, and my older son got away with entering the country with his green card again, because the immigration officer was being nice and told him that he understands that his green card is important to him....he did warn him though that another immigration officer may not be as nice.....
I will travel to the U.S. again in September, but because I last left the country in August of last year, I will have officially been out of the country for over a year by then. Should I voluntarily surrender my green card? Is there any way for me to still apply for a re-entry permit? Is there any way I can still try to get U.S. citizenship? And what about my son? Can he keep his green card even if I surrender mine, or should I surrender both of them? What's the benefit of surrendering it, versus risking getting it confiscated the next time we enter the country?
The thing of it is that we definitely want to move back to the U.S. in the future, but not for another few years.

 

[Jackolantern]

I will travel to the U.S. again in September, but because I last left the country in August of last year, I will have officially been out of the country for over a year by then.

Without a reentry permit or other papers that allow staying outside the US for over a year (e.g. military deployment), your green card is not valid for entry after spending over a year outside the US. After that one-year cutoff you'll have to apply for an SB-1 visa at a US consulate to have it reinstated. Such approval is not guaranteed. So if you want to keep your green card, find a way to return before the 1 year is up.

Can he keep his green card even if I surrender mine, or should I surrender both of them?

If he starts spending enough time in the US again, he can keep his card even if you surrender yours. If he's under 18, make sure he is already inside the US before surrendering yours, otherwise he may have more trouble reentering the US.

What about your older son's other parent? If that parent became a US citizen before your son turned 18, that may enable your son to derive US citizenship despite the large amount of time outside the US, if he goes to live with that parent in the US.

What's the benefit of surrendering it, versus risking getting it confiscated the next time we enter the country?

If you voluntarily and officially surrender it with form I-407, that makes it easier to get a tourist visa or other nonimmigrant status (visa waiver, student visa etc.). You can even apply for a visa in the same visit to the consulate when surrendering the card (however if you're German you don't need a visa to enter as a tourist because of the visa waiver).

 

[Jackolantern]

Is there any way I can still try to get U.S. citizenship?

It seems the answer is NO, but you haven't listed the specific travel dates in the past 5 years or explained exactly why you've been abroad that long so maybe you could qualify for citizenship depending on the specifics of your situation. Generally you need a total of 30 months (913 days to be exact) within the US in the past 5 years, and should have no absences of 6 months or more during that time, but there are several ifs and buts involved so in some cases it's possible to get citizenship despite breaking one or both of conditions, for example military service outside the US.

 

[yoyomir]

oncyabl concep

So if you want to keep your green card, find a way to return before the 1 year is up.

First of all, thank you so much for your answers!! That was really helpful. I have a few more questions though. You said that if I wanted to keep my green card, I would have to return to the U.S. before the 1 year is up. But that would put me in the same predicament every year unless I moved back to the States permanently, right? Or would I be able to get a re-entry permit while there even though I have already left the country 3 years ago? Also, there is no guarantee that my green card wouldn't be taken from me even if I return before the year is up, right? The thing of it is, I am not ready to move back to the States permanently just yet.

What about your older son's other parent? If that parent became a US citizen before your son turned 18, that may enable your son to derive US citizenship despite the large amount of time outside the US, if he goes to live with that parent in the US.

His other parent is living in Germany as well. So that wouldn't be an option....

 

[yoyomir]

It seems the answer is NO, but you haven't listed the specific travel dates in the past 5 years or explained exactly why you've been abroad that long so maybe you could qualify for citizenship depending on the specifics of your situation. Generally you need a total of 30 months (913 days to be exact) within the US in the past 5 years, and should have no absences of 6 months or more during that time, but there are several ifs and buts involved so in some cases it's possible to get citizenship despite breaking one or both of conditions, for example military service outside the US.

There is no real reason why I have been away so long. I left the U.S. because of health issues I was having that I needed to address in Germany. It took me about a year and a half to recover. Then I got a job offer that I couldn't turn down, my children got into a very good public bilingual school ... it just happened. Life just happened. The idea is for the kids to finish elementary school (the younger son) and middle school (the older son) before we move back. There have been too many transitions and changes in their lives. There are a couple of more personal/familial reasons why we cannot move back at this time. I guess none of these things would justify breaking the conditions for qualifying for citizenship though.
My question: If I moved back to the U.S. now despite the fact that this is not at all the right time for us, would the 5 year count start all over again? And what about the 'no absence of 6 months' rule?

 

[Jackolantern]

First of all, thank you so much for your answers!! That was really helpful. I have a few more questions though. You said that if I wanted to keep my green card, I would have to return to the U.S. before the 1 year is up. But that would put me in the same predicament every year unless I moved back to the States permanently, right?

Yes. Returning before the year is up would preserve your green card for another year, but then at the end of that 1 year you'd be facing the same issue again.

Or would I be able to get a re-entry permit while there even though I have already left the country 3 years ago?

Approval of the first reentry permit is practically automatic if you've spent less than 4 years outside* the US in the past 5 years. That's assuming they don't take away your green card before you get to apply for the permit.

Also, there is no guarantee that my green card wouldn't be taken from me even if I return before the year is up, right?

Correct. Because of your history they might take it away on your next arrival. But if you return before it's been a year, they won't take it away permanently at the airport; you'll have the chance to plead to get it back in immigration court and the judge will look at your entire situation. Whereas if you've been gone for over a year, they'll probably refuse entry and send you back on the next flight.

My question: If I moved back to the U.S. now despite the fact that this is not at all the right time for us, would the 5 year count start all over again?

You wouldn't have to wait another full 5 years; they allow you to apply 4 years and 1 day after the end of your last long absence. During those 4 years and 1 day you must have accumulated enough physical presence to total the required 30 months (913 days).


*time outside the US before you became a permanent resident doesn't count.