What should my mother and I do ??

M

Mahmoud Khalil

Registered Users (C)
Hi guys, my mom and I are planning to move back to the US soon, we left in summer 2008 with valid green cards and had the intention to return but my brother who is now an American citizen left the apartment we lived in and joined the military and was on military duty overseas and just returned recently, should we try to apply for returning visa? or should we enter the US and in case we signed for residence abandonment (i-407) my brother can submit an i-130 form for my mother and then she can sponsor me since I'm only 19 years, and if we went through the reapplying process can we stay in the US in the meantime ??

thanks
 
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Your first course of action is to immediately apply for a returning resident (SB-1) visa and REALLY emphasisze that you were waiting for your brother to be discharged before returning to the U.S. Did you and mom get re-entry permits before departing the U.S.? If you are denied the SB-1 AND an airline lets you board, return to the U.S. anyway. Do not sign a form I-407, if they won't let you in, ask to present your case to an IJ.

An IJ can return and likely WILL let you keep your greencards when you bring up your brother's military service. Hopefully, it won't come to that.

8 CFR 316.5 (c)

(4) Readmission after a deferred inspection or exclusion proceeding. An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under §316.2 (a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.
 
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unfortunately we never applied for re-entry permits since the plan was to return after 3 months or so for my senior year of high school, also I'm a bit worried if presumptuously our returning visa requests got denied the green card will be out of status

thanks for the help
 
BigJoe5 said:
Your first course of action is to immediately apply for a returning resident (SB-1) visa and REALLY emphasisze that you were waiting for your brother to be discharged before returning to the U.S. Did you and mom get re-entry permits before departing the U.S.? If you are denied the SB-1 AND an airline lets you board, return to the U.S. anyway. Do not sign a form I-407, if they won't let you in, ask to present your case to an IJ.

An IJ can return and likely WILL let you keep your greencards when you bring up your brother's military service. Hopefully, it won't come to that.

8 CFR 316.5 (c)

(4) Readmission after a deferred inspection or exclusion proceeding. An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under §316.2 (a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.
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Do not take your GC's when you try to get the SB1 at any cost as they will take them from you.
 
but still I'll have to write down the green card's number on the form and send copies of the passport stamps, which makes me wonder if they can contact the USCIS or do something else after denial to state that the card was relinquished ??
 
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namecheckvictim said:
Do not take your GC's when you try to get the SB1 at any cost as they will take them from you.
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Please provide a legal citation that gives the State Department the right to confiscate greencards issued by USCIS. DOS even returns greencards to derivative USC's along with their passports. Citizens are NOT supposed to have greencards and are supposed to give them up when they become USC's BUT they give them up to USCIS, not DOS because DOS did not issue them.
 
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Mahmoud Khalil said:
but still I'll have to write down the green card's number on the form and send copies of the passport stamps, which makes me wonder if they can contact the USCIS or do something else after denial to state that the card was relinquished ??
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So what if they alert DHS, CBP does not need to be alerted, they will see you face-to-face at the POE. At that time, if you don't have an SB-1 visa, they cannot put you back on the plane unless you let them do it. Do not sign a form I-407. As a greencardholder, they are not legally allowed to lift your card and put you back on a plane without an order from an Immigration Judge. You would have to be a convicted criminal who has been issued a Removal Order that they could use to kick you out via Expedited Removal. I don't think that is you situation, right?
 
yes, so you suggest we go for a returning resident visa petition and if it's denied the 2nd chance would be getting a court hearing if the officer tended to take the green card away ??
 
Mahmoud Khalil said:
yes, so you suggest we go for a returning resident visa petition and if it's denied the 2nd chance would be getting a court hearing if the officer tended to take the green card away ??
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I'll say it one more time, the CBP Officer can't take your card away without a judge's order (even an old order) or you voluntarily give it up. How old are you, I think you just finished High School, right? You mentioned mom but not dad, and you have a brother who is a USC and just got out of the U.S. Military. His moving out meant that you and mom had to return to the "old country" maybe to live with relatives because your brother was paying the rent and you two couldn't afford it on your own????

Put yourself in the Consular Officer's position. IF you were deciding on the SB-1 visa, how would you rule, and why? CONSIDER this as an essay assignment (but keep it brief and to the point). Enumerate all positive and negative factors in the case. (The Consular Officer has some records and you are providing more at this time.) I want to hear back soon.
 
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you are right I just finished high school, left the US when I was about 16 and I just turned 19, my father is deceased, me and my mom resided with my brother who used to split the rent with us

and about the SB-1 part, I'm usually anxious about discretional decisions even if I have strong evidence, but I will give it a try and post any updates
 
On what basis did you immigrate? I know your brother didn't sponsor you (although he may have sponsored your mother), unless he's at least thirtysomething years old. Whoever sponsored you was financially responsible for supporting you in the US. If father was the sponsor, his death would provide a good reason why you couldn't afford to live in the US without your brother.

What prevented you and your mother from going back to the US for a short trip to get a reentry permit? Expect the consulate to ask that. Even if your brother's deployment caused you to be unable to afford to live in the US, it didn't prevent your mother from taking a short trip back before you spent a year abroad (at least you personally can say you were a minor at the time so you didn't have the means to go back yourself).

Whatever you do, hurry up and try for the SB-1 visa or attempt to return to the US without it, so if the attempt fails your brother can sponsor your mother ASAP so she can then sponsor you before you turn 21. When applying for the SB-1 or traveling back to the US without it, make sure you bring your brother's military papers (both the deployment and end of deployment), and his birth certificate to prove the family relationship.

Note that if you plan to return to the US without the SB-1 visa, you may have to wait a long time to see an immigration judge, and that time eats away at your opportunity to be sponsored by your mother before you turn 21.
 
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namecheckvictim said:
Do not take your GC's when you try to get the SB1 at any cost as they will take them from you.
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They have to bring evidence of permanent residence when applying for the SB1 visa. So unless they have an I-551 passport stamp, they'll need to bring the green card to the consulate.
 
Was your father a USC? If yes, you might be one too, depending on when he became a citizen and where you and he were living when you were under 18.
 
we were sponsored by the father who had obtained a green card in 2003 and died in 2005, so i didn't leave right after his death which makes it seem like a weak execuse
 
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Mahmoud Khalil said:
we were sponsored by the father who had obtained a green card in 2003 and died in 2005, so i didn't leave right after his death which makes it seem like a weak execuse
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Since the loss of your dad, did your brother's role change so that he was working and contributing financialy to the family? How did that situation change when he joined the military? Did he get citizenship through military service?
 
BigJoe5 said:
Since the loss of your dad, did your brother's role change so that he was working and contributing financialy to the family? How did that situation change when he joined the military? Did he get citizenship through military service?
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he was helping us financially and paid half the rent but not in any lawful sense, but after we left and he joined the military he never contributed
although he got his citizenship through the military he was already eligible for the citizenship through his green card since he never took a trip outside the US until he joined the military in 2008
 
Mahmoud Khalil said:
he was helping us financially and paid half the rent but not in any lawful sense, but after we left and he joined the military he never contributed
although he got his citizenship through the military he was already eligible for the citizenship through his green card since he never took a trip outside the US until he joined the military in 2008
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What do you mean "not in a lawful sense"? Was he robbing banks or dealing drugs to pay the rent? He had a greencard so any legitimate income would be lawful.
 
BigJoe5 said:
Please provide a legal citation that gives the State Department the right to confiscate greencards issued by USCIS. DOS even returns greencards to derivative USC's along with their passports. Citizens are NOT supposed to have greencards and are supposed to give them up when they become USC's BUT they give them up to USCIS, not DOS because DOS did not issue them.
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Even though there are no legal grounds but there are some reports on this forum whose GC's were taken without issuing a SB-1 in India. I thought maybe if they take the copy of a GC and tell em they have them but in a safe deposit or something will help them retain it, this way they can travel to Canada easily and try entering US by land with less scrutiny, although I know its in the grey area, but worth a try, if they refuse the SB-1.
There are also reports that Airline's are not allowing boarding to US to folks in the similar situation from India, although I knew someone that travelled easily to US but they flew from Pakistan.
 
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