Start over?
Apr 15th 2006, 4:30 am
#1
Guest
Posts: n/a
Start over?
Hello,
My wife entered the USA in March 2001 with a marriage-based visa. We
were married in Japan in Jan. 2001, and applied for the visa using the
DCF route. After 2 years her status was adjusted, and her conditional
status was removed.
Since March 2004 we have been living in Japan, because I took a
position with a Japanese company. Very regrettably, I did not apply for
a re-entry permit - mostly due to my own negligence but also because at
the time we thought we would be living in Japan long term. She has been
back to the USA with me a few times since then on visits. We never made
any official statement to Immigration that we relocated to Japan.
Sure enough, there is now a very strong possibility that we will be
relocating back to USA. Here are a few questions:
1. Will we have to start over from square one with a new visa
application, since a re-entry permit was not obtained?
2. Are there any special procedures required since she has already
received permanent resident status, and then left the USA? Will the
second application be affected in any way by the prior receipt of
permanent resident status?
3. About the police certificate requirement, my wife lived in China
about 10 years ago. She got a police certificate for the first visa
application. Will she need to get a new certificate from China - even
though she has not lived there since the first application was filed? I
hope we can avoid the hassle of getting a new police certificate from
China.
I'm sure I will have more questions in the future. Thanks in advance
for advice/help.
-pmci
My wife entered the USA in March 2001 with a marriage-based visa. We
were married in Japan in Jan. 2001, and applied for the visa using the
DCF route. After 2 years her status was adjusted, and her conditional
status was removed.
Since March 2004 we have been living in Japan, because I took a
position with a Japanese company. Very regrettably, I did not apply for
a re-entry permit - mostly due to my own negligence but also because at
the time we thought we would be living in Japan long term. She has been
back to the USA with me a few times since then on visits. We never made
any official statement to Immigration that we relocated to Japan.
Sure enough, there is now a very strong possibility that we will be
relocating back to USA. Here are a few questions:
1. Will we have to start over from square one with a new visa
application, since a re-entry permit was not obtained?
2. Are there any special procedures required since she has already
received permanent resident status, and then left the USA? Will the
second application be affected in any way by the prior receipt of
permanent resident status?
3. About the police certificate requirement, my wife lived in China
about 10 years ago. She got a police certificate for the first visa
application. Will she need to get a new certificate from China - even
though she has not lived there since the first application was filed? I
hope we can avoid the hassle of getting a new police certificate from
China.
I'm sure I will have more questions in the future. Thanks in advance
for advice/help.
-pmci
Apr 15th 2006, 12:35 pm
#2
Account Closed
Joined: Aug 2002
Location: Kentucky
Posts: 38,865
Re: Start over?
Originally Posted by Pmci
1. Will we have to start over from square one with a new visa application, since a re-entry permit was not obtained?
Ian
Apr 15th 2006, 4:58 pm
#3
Forum Regular
Joined: Sep 2003
Posts: 160
Re: Start over?
Originally Posted by Pmci
Hello,
My wife entered the USA in March 2001 with a marriage-based visa. We
were married in Japan in Jan. 2001, and applied for the visa using the
DCF route. After 2 years her status was adjusted, and her conditional
status was removed.
Since March 2004 we have been living in Japan, because I took a
position with a Japanese company. Very regrettably, I did not apply for
a re-entry permit - mostly due to my own negligence but also because at
the time we thought we would be living in Japan long term. She has been
back to the USA with me a few times since then on visits. We never made
any official statement to Immigration that we relocated to Japan.
Sure enough, there is now a very strong possibility that we will be
relocating back to USA. Here are a few questions:
1. Will we have to start over from square one with a new visa
application, since a re-entry permit was not obtained?
2. Are there any special procedures required since she has already
received permanent resident status, and then left the USA? Will the
second application be affected in any way by the prior receipt of
permanent resident status?
3. About the police certificate requirement, my wife lived in China
about 10 years ago. She got a police certificate for the first visa
application. Will she need to get a new certificate from China - even
though she has not lived there since the first application was filed? I
hope we can avoid the hassle of getting a new police certificate from
China.
I'm sure I will have more questions in the future. Thanks in advance
for advice/help.
-pmci
My wife entered the USA in March 2001 with a marriage-based visa. We
were married in Japan in Jan. 2001, and applied for the visa using the
DCF route. After 2 years her status was adjusted, and her conditional
status was removed.
Since March 2004 we have been living in Japan, because I took a
position with a Japanese company. Very regrettably, I did not apply for
a re-entry permit - mostly due to my own negligence but also because at
the time we thought we would be living in Japan long term. She has been
back to the USA with me a few times since then on visits. We never made
any official statement to Immigration that we relocated to Japan.
Sure enough, there is now a very strong possibility that we will be
relocating back to USA. Here are a few questions:
1. Will we have to start over from square one with a new visa
application, since a re-entry permit was not obtained?
2. Are there any special procedures required since she has already
received permanent resident status, and then left the USA? Will the
second application be affected in any way by the prior receipt of
permanent resident status?
3. About the police certificate requirement, my wife lived in China
about 10 years ago. She got a police certificate for the first visa
application. Will she need to get a new certificate from China - even
though she has not lived there since the first application was filed? I
hope we can avoid the hassle of getting a new police certificate from
China.
I'm sure I will have more questions in the future. Thanks in advance
for advice/help.
-pmci
You may be able to just come back, since you already have a few times before. But that's the chance they may question it or they may parol her in and then have to appear before a judge.
There is also the Returning Resident Petition. I haven't tried this but when we checked on it we were told they are almost never approved. However, given my experience with the embassy that told us that, I think they are out of line. But Japan may be more reasonable.
http://uscis.gov/graphics/formsfee/forms/i-191.htm
Good luck.
Apr 15th 2006, 6:43 pm
#5
BE Enthusiast
Joined: Jan 2004
Location: SFO
Posts: 871
Re: Start over?
I agree with the others that you ought to have a US immigration attorney evaluate your situation. (Don't get an "immigration consultant" abroad -- make sure you consult with an actual attorney versed in US immigration law. This might be someone in the US and you might have to do it over the phone/email, but IMHO that's better than someone without a US law degree that you can meet with face-to-face in Japan.)
You may or may not have to start all over -- you need to have an attorney review your specifics to get a more definitive answer. But as an example, if your wife has not been out of the US for one year or more at a time, has maintained a US address, filed US taxes, and maintained other ties to the US, it's *possible* that they would not consider her to have abandoned her residency. I believe it's ultimately it's up to the guy at the POE, but an attorney can look at your specifics and tell you what is likely to happen, and prepare you for how to handle the situation.
If she has, in fact, abandoned her residency, you would either start over again or you could try the returning resident thing. I believe with the returning resident visa you have to prove that it wasn't your fault that you had to abandon your residency. In my uneducated opinion, it's probably easier to just start over with a fresh immigrant visa/green card application since you are still married and she is perfectly eligible for another green card. The fact that she had a GC before and gave it up (if that is indeed the case) will not be held against her.
Since you (the USC) are living in Japan, if you do need to get her a new green card, see if you can file I-130 directly at the US consulate in Japan. This is called "DCF" (direct consular filing) in forum-speak, if you want to do some reading on that. DCF is usually pretty fast, 2-3 months in many countries. Ultimately she will get an "immigrant visa" -- when she enters the US with that visa, she is entering as an LPR and will get her passport stamped as such. The plastic GC will be mailed to you afterwards.
Good luck!
You may or may not have to start all over -- you need to have an attorney review your specifics to get a more definitive answer. But as an example, if your wife has not been out of the US for one year or more at a time, has maintained a US address, filed US taxes, and maintained other ties to the US, it's *possible* that they would not consider her to have abandoned her residency. I believe it's ultimately it's up to the guy at the POE, but an attorney can look at your specifics and tell you what is likely to happen, and prepare you for how to handle the situation.
If she has, in fact, abandoned her residency, you would either start over again or you could try the returning resident thing. I believe with the returning resident visa you have to prove that it wasn't your fault that you had to abandon your residency. In my uneducated opinion, it's probably easier to just start over with a fresh immigrant visa/green card application since you are still married and she is perfectly eligible for another green card. The fact that she had a GC before and gave it up (if that is indeed the case) will not be held against her.
Since you (the USC) are living in Japan, if you do need to get her a new green card, see if you can file I-130 directly at the US consulate in Japan. This is called "DCF" (direct consular filing) in forum-speak, if you want to do some reading on that. DCF is usually pretty fast, 2-3 months in many countries. Ultimately she will get an "immigrant visa" -- when she enters the US with that visa, she is entering as an LPR and will get her passport stamped as such. The plastic GC will be mailed to you afterwards.
Good luck!
Apr 15th 2006, 8:14 pm
#6
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Start over?
Originally Posted by Pmci
Hello,
My wife entered the USA in March 2001 with a marriage-based visa. We
were married in Japan in Jan. 2001, and applied for the visa using the
DCF route. After 2 years her status was adjusted, and her conditional
status was removed.
Since March 2004 we have been living in Japan, because I took a
position with a Japanese company. Very regrettably, I did not apply for
a re-entry permit - mostly due to my own negligence but also because at
the time we thought we would be living in Japan long term. She has been
back to the USA with me a few times since then on visits. We never made
any official statement to Immigration that we relocated to Japan.
Sure enough, there is now a very strong possibility that we will be
relocating back to USA. Here are a few questions:
1. Will we have to start over from square one with a new visa
application, since a re-entry permit was not obtained?
2. Are there any special procedures required since she has already
received permanent resident status, and then left the USA? Will the
second application be affected in any way by the prior receipt of
permanent resident status?
3. About the police certificate requirement, my wife lived in China
about 10 years ago. She got a police certificate for the first visa
application. Will she need to get a new certificate from China - even
though she has not lived there since the first application was filed? I
hope we can avoid the hassle of getting a new police certificate from
China.
I'm sure I will have more questions in the future. Thanks in advance
for advice/help.
-pmci
My wife entered the USA in March 2001 with a marriage-based visa. We
were married in Japan in Jan. 2001, and applied for the visa using the
DCF route. After 2 years her status was adjusted, and her conditional
status was removed.
Since March 2004 we have been living in Japan, because I took a
position with a Japanese company. Very regrettably, I did not apply for
a re-entry permit - mostly due to my own negligence but also because at
the time we thought we would be living in Japan long term. She has been
back to the USA with me a few times since then on visits. We never made
any official statement to Immigration that we relocated to Japan.
Sure enough, there is now a very strong possibility that we will be
relocating back to USA. Here are a few questions:
1. Will we have to start over from square one with a new visa
application, since a re-entry permit was not obtained?
2. Are there any special procedures required since she has already
received permanent resident status, and then left the USA? Will the
second application be affected in any way by the prior receipt of
permanent resident status?
3. About the police certificate requirement, my wife lived in China
about 10 years ago. She got a police certificate for the first visa
application. Will she need to get a new certificate from China - even
though she has not lived there since the first application was filed? I
hope we can avoid the hassle of getting a new police certificate from
China.
I'm sure I will have more questions in the future. Thanks in advance
for advice/help.
-pmci
Consultation with a US Immigration Attorney well versed in the law of "abandonment" is in order. The law in this area is both "well established" and murky. There is also a procedure for an "SB-1" visa.
Forewarning -- abandonment law is an obscure subarea of immigration law. A small but appreciable part of my practice has involved it and I have "re-invent the wheel" every time.
