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i-864W question (new Social Security setback)

i-864W question (new Social Security setback)

Old Jun 11th 2012, 10:27 pm
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Default i-864W question (new Social Security setback)

Hi all,
This is my first time posting, so thanks in advance for any advice you can give. I am a U.S. citizen and my husband (of 9 years) is a U.K. citizen. My husband and I met in the U.S. (he was a resident for 20 years) and have been living in the U.K. for the past 2 years. We decided in March that we wanted to move back to the U.S. but had somehow missed the "fine print" that said that my husband could not live outside of the U.S. for more than a year, otherwise he abandons his residency. Now we are going through the long, frustrating, costly process of the i130.
We applied for the i130 visa in March 2012 and received our notice of receipt on April 13th, 2012. We have all of our paperwork filled out in anticipation of our approval, that is, except for the i-864. My husband worked and paid taxes in the U.S. for nearly 20 years and has earned more than the 40 credits required to the i-864W, however the form requires that you send a copy of your SSA earnings statement. It used to be that Social Security sent a yearly earnings statement to all U.S. residents who filed taxes that year, but when we called the Social Security office they said that as of 2012 they no longer send earnings statements due to budget cuts (and the cost of paper/mailing).
I asked if there was any way to have this information sent to us because we needed it for immigration reasons and the clerk told me that they are in the process of setting up a system for online printing but it is not yet available, and mailing of all statements has been frozen. She DID tell me that she could verify the info over the phone, and did so (Oh, joy! That helps. ). I asked her what I needed to do and she told me to contact the embassy. I called the infamous "number" and was provided with an email code to which I outlined all of the above. The response told me to provide tax statements for the past 20 years. I'm sorry, but I don't know ANYONE who keeps tax statements for 20 years. I do have them for the past 6 years but that won't help in the case of credits.
My daughter and I are moving to the U.S. in July (my UK spousal visa runs out) in hopes that my husband will be able to join us soon. I doubt that the Social Security office will give me a copy of my husband's earnings statement without him present but it's worth a try. Can anyone think of any way to sort this dilemma?

Note: We could try a joint sponsorship if necessary, but I don't have a job yet (that lets me out) and my parents may or may not qualify (I'm haven't asked them yet). I was hoping not to do this as my husband has worked and paid taxes for 20 years, he qualifies for an i-864W but we just can't prove it (yet!).

Thanks for listening.
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Old Jun 11th 2012, 10:52 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by jennarandhayes
My daughter and I are moving to the U.S. in July (my UK spousal visa runs out) in hopes that my husband will be able to join us soon. I doubt that the Social Security office will give me a copy of my husband's earnings statement without him present but it's worth a try. Can anyone think of any way to sort this dilemma?
Your husband can still visit the US while the process is going on... indeed, as a green card holder, he has the right to see a US immigration judge who will make the final determination of whether or not he has abandoned his status.


... but had somehow missed the "fine print" that said that my husband could not live outside of the U.S. for more than a year, otherwise he abandons his residency.
Actually, time outside the US, by itself, is not sufficient to lose status.... there must also be an intent to give up permanent residency status.

I suggest your husband fly to the US and attempt to enter with his GC as a PR. If he's allowed in, great. If he's not, he'll more than like be parolled into the US pending a hearing before the immigration judge. Either way, he's in the US and can go to an SSA office and get the statement directly from them. Due to privacy issues, he is the only one who can get it - they won't give you that information.

Edit to add: By the way, if he is allowed in on his GC and not parolled into the US, you can subsequently abandon the visa process. He won't need it as he's already in the US and is a PR.

Ian

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Old Jun 11th 2012, 11:08 pm
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Default Re: i-864W question (new Social Security setback)

Thanks for the help. I forgot to mention that his green card expired while living in the UK. That was the whole reason we found out about his "abandonment" of status. We went to renew the GC and found out that he had to re-apply. x
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Old Jun 11th 2012, 11:30 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by jennarandhayes
Thanks for the help. I forgot to mention that his green card expired while living in the UK.
Was it a 2-year or 10-year card. If it was a 2-year card and he didn't file to remove the conditions on the status, then yes... his status expired the day the card expired. If it was a 10-year card, you need to know that the card may expire, but the status doesn't. The card is only proof of the status... it isn't the status itself.

Here's someting to remember: he is a PR until a US immigration judge says he's not. Even the CBP officer at the PoE doesn't have the authority to make that decision. Even an expired card doesn't force that decision.

That was the whole reason we found out about his "abandonment" of status. We went to renew the GC and found out that he had to re-apply.
He can certainly reapply for a GC... and abandonment doesn't enter the equation.

Ian

Last edited by ian-mstm; Jun 11th 2012 at 11:36 pm.
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Old Jun 11th 2012, 11:50 pm
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Default Re: i-864W question (new Social Security setback)

It was a 10 year green card.

How do we see an immigration judge? Is there any chance that he will be denied entry? Even as a tourist? Can he enter as a tourist and still see a judge?

Does he board a plane using his British passport claiming to be a tourist (using a tourist visa) or does he present his (expired)green card to the airline? The airline will deny him boarding with the expired GC, right?

Will the SSA statement will help our case once in America or is that just for the i130?

What evidence could we possibly provide to prove that we didn't intend on abandoning status? We actually didn't know how long we planned to stay in the UK, definitely NOT permanently and we surely never knew that by leaving for more than a year it would be considered abandonment.

Thank you loads for all of your invaluable information! x
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Old Jun 12th 2012, 6:19 am
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Default Re: i-864W question (new Social Security setback)

I doubt that the Social Security office will give me a copy of my husband's earnings statement without him present but it's worth a try.
Well he can still request one from the UK, I've done it myself and I'm not a US citizen or an LPR. Don't have to live in the US, they will mail it anywhere. IIRC you might have to file an 8822 with the IRS to update your address. But first they've got to get rid of this freeze you're on about. I suppose you could get it in writing and add it to the I-864 that they won't issue it.

My husband worked and paid taxes in the U.S. for nearly 20 years
But did he carry on filing a US tax return and declaring his UK income to the IRS after he left? That is one of the factors for determining if he still is an LPR. And by "declaring" I mean he's been filing his tax return as a US resident and paying US taxes on it and claiming a foreign tax credit. You can still go back and file an adjustment if it's only been two years.

How do we see an immigration judge?
Basically if CBP doesn't believe him, they can parole him in and then he gets a hearing. They could deny him entry but he's only been out of the US a couple of years.

You can't enter as a tourist and then do it, being a tourist requires non-immigrant intent which he clearly does not have.

The airline will deny him boarding with the expired GC, right?
Fly to Canada, enter by land. (Canada has a law about not allowing people to board without a legal right to enter Canada, not sure if the US does, the airline may have a policy - but if you do get denied entry to the US after flying in, you have to buy a ticket at short notice which is pricey, if you fly to Canada, not such a big problem as you can hang around in Canada a bit. The US does require airlines that participate in the VWP to guarantee return flights for people who have been denied entry, so presumably they will check before allowing him to board, because of the risk.)

We had a thread on here before where I explained that I'd actually seen this happen at secondary inspection, Chinese couple walked in with an interpreter and were clearly taking the piss because it was obvious to me that they understood English, they had expired cards and plead ignorance but they were denied entry, I watched them go back to Canada.

The inspector told them to get in touch with USCIS, so either he didn't do his job correctly or possibly they had commuter green cards.

So I think he'd have to ask the question, i.e. parole me in and let me sort it out with an immigration judge, if CBP are awkward. Ask to talk to a supervisor.

But is this more awkward than what you're already doing? Up to you.

Last edited by Steve_; Jun 12th 2012 at 6:28 am.
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Old Jun 12th 2012, 12:05 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by Steve_
They could deny him entry but he's only been out of the US a couple of years.
No, they can't. They can't summarily refuse entry to anyone who asserts status as a PR.


You can't enter as a tourist and then do it, being a tourist requires non-immigrant intent which he clearly does not have.
Sure he can. He's not trying to adjust status. He's trying to assert an already existing status. Big difference!


Fly to Canada, enter by land.
Complete waste of time. He can apply for ESTA if he wants and board the plane. Once he's landed, he shows his GC and asserts his status. He doesn't have to enter on the VWP just because he's completed ESTA. All ESTA does is get you on the plane.


So I think he'd have to ask the question, i.e. parole me in and let me sort it out with an immigration judge, if CBP are awkward. Ask to talk to a supervisor.
This seems reasonable.

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Old Jun 12th 2012, 12:19 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by jennarandhayes
How do we see an immigration judge?
If he's not allowed in on his status as a PR, he'll most likely be parolled in and then scheduled to see an IJ.


Is there any chance that he will be denied entry?
Highly unlikely.


Even as a tourist?
Probably not.


Can he enter as a tourist and still see a judge?
Probably not. There's no basis for a hearing when he's just a tourist. He'd need to assert his status as a PR.


Does he board a plane using his British passport claiming to be a tourist (using a tourist visa) or does he present his (expired)green card to the airline?
He should apply for ESTA and use that to get onto the plane. Once landed, he should present his GC to the CBP officer at the POE.


The airline will deny him boarding with the expired GC, right?
If he presents only an expired GC, yes. After one year outside the US, the GC is no longer a valid travel document... although it is still proof of his status as a PR. That's why he needs to apply for ESTA first. An approved ESTA will allow him to board the plane.


Will the SSA statement will help our case once in America or is that just for the i130?
If he's allowed to enter on his GC, he won't need the SSA statement. If he's parolled in, he should get it.


What evidence could we possibly provide to prove that we didn't intend on abandoning status? We actually didn't know how long we planned to stay in the UK, definitely NOT permanently...
I'm not suggesting this will be a walk in the park, but if you honestly didn't plan to stay in the UK permanently, then that demonstrates your intent not to abandon status.

Bottom line - he has two choices: 1) He can genuinely enter the US as a tourist long enough to get his SSA statement for the I-864W, return to the UK, and then continue with the immigrant visa process; or 2) He can assert his status at the port of entry and see what happens. Even if the IJ determines that he has abandoned his status, he can still return to the UK and continue on with the immigrant visa process.

All things considered, #1 is the easiest thing to do; #2 is risky, but it has the greater reward.

Ian
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Old Jun 13th 2012, 9:37 pm
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Default Re: i-864W question (new Social Security setback)

Bottom line - he has two choices: 1) He can genuinely enter the US as a tourist long enough to get his SSA statement for the I-864W, return to the UK, and then continue with the immigrant visa process; or 2) He can assert his status at the port of entry and see what happens. Even if the IJ determines that he has abandoned his status, he can still return to the UK and continue on with the immigrant visa process.

All things considered, #1 is the easiest thing to do; #2 is risky, but it has the greater reward.
Thanks for all of the help, you have been a wealth of knowledge! When you say that #2 is risky, how is it risky? If he won't be denied entry and he will be given the opportunity to see a judge, what are we risking? How long do people generally wait to see a judge? If it is determined that he has abandoned his status does he have to leave immediately? Wouldn't it make sense that he would be allowed to stay if for nothing more than the fact that he has contributed enough to SS to retire? TIA. x
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Old Jun 13th 2012, 9:50 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by jennarandhayes
Thanks for all of the help, you have been a wealth of knowledge! When you say that #2 is risky, how is it risky? If he won't be denied entry and he will be given the opportunity to see a judge, what are we risking?
If he's allowed in to see an IJ, he might have to wait in detention, which is not fun. He might not be able to get to work, he might not be able to live at home, etc.

How long do people generally wait to see a judge?
Might be months.

If it is determined that he has abandoned his status does he have to leave immediately?
Yes, since he would have no basis for remaining in the USA.

Wouldn't it make sense that he would be allowed to stay if for nothing more than the fact that he has contributed enough to SS to retire?
No.

Rene
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Old Jun 14th 2012, 12:08 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by jennarandhayes
If he won't be denied entry and he will be given the opportunity to see a judge, what are we risking? How long do people generally wait to see a judge? If it is determined that he has abandoned his status does he have to leave immediately?
Rene has it right. There's no knowing in advance whether or not he'd be parolled in to the US - he probably will be (most are), but he might not be. He could be put in detention if they decide he shouldn't be parolled in but still has the right to see the IJ. There's just no way to know what will happen... those are the risks.


Wouldn't it make sense that he would be allowed to stay if for nothing more than the fact that he has contributed enough to SS to retire?
No. Without a valid immigrant visa, his only basis for being allowed to remain in the US is that he formerly had a GC. If the GC route goes belly up, he has no valid basis for remaining.

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Old Jun 14th 2012, 2:47 pm
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Default Re: i-864W question (new Social Security setback)

Damned if I know - you've written nothing about why you went to the UK, what you did when you got there, what happened to cause you to stay there as long as you did, and what has caused you to now want to return to the USA.

Perhaps a consultation with an immigration attorney would be in order. Lawyers are pretty good at prying relevant information out of people who have no clue about the situation they're in. (Not trying to degrade, simply stating what the case is based on what you've written in your posts.) Depending on the details of your situation, perhaps a good lawyer could 'spin' a good enough story for an SB-1 visa.

Regards, JEff


Originally Posted by jennarandhayes
What evidence could we possibly provide to prove that we didn't intend on abandoning status? We actually didn't know how long we planned to stay in the UK, definitely NOT permanently ...

Last edited by jeffreyhy; Jun 14th 2012 at 2:52 pm.
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Old Jun 14th 2012, 2:50 pm
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Default Re: i-864W question (new Social Security setback)

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Old Jun 14th 2012, 5:40 pm
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Default Re: i-864W question (new Social Security setback)

Originally Posted by jeffreyhy
Depending on the details of your situation, perhaps a good lawyer could 'spin' a good enough story for an SB-1 visa.
Good catch! I hadn't thought of an SB-1 visa.

jennarandhayes... Google is your friend.

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