aribee

Hi guys,

My situation is probably quite unique. I have previously lived in Seattle under permanent residency status for almost 5 years. I had to come back to Australia to look after my grandmother and deal with court proceedings with family as her health declined for the past 2 years. Before I left the U.S I didn't realise that I had to apply for travel document (I left in a hurry) and so my green card has been considered abandoned as I have been gone more than 12 months. (I left U.S in November 2013) I have however found that I can apply to have my residency reinstated under SB-1 visa if the reason I was away so long was out of my control, and I have maintained ties and intent to return to the U.S

That is the first part of my situation.

I have, while living here, met someone and we are engaged to be married. We both wish to move to Seattle (I wish to move back). My Fiancé qualifies under E3 Visa status.

My questions are:

Once we are there, can we petition for his GC based off marriage to me being a permanent resident? (providing my residency gets reinstated)

Will the fact that he was married to a permanent resident before moving to U.S on E3 affect his application / E3 as they may assume that being married to a permanent resident already would show dual intent?

Would it work out better for us if we hold off on being married until we arrive in the U.S? Each traveling on our own separate visas? (his being E3, mine being Permanent Residency)

If my residency reinstatement (SB1) is denied, would that make things hard for us going the E3 (and me as E3D) to GC route based off the fact that I have previously been a permanent resident? - would this come off as dual intent from the beginning?

It just seems like there are a few different routes for us and I'm trying to find the most effective one. We really don't want to spend time apart in separate countries ect. We would ideally leave for the U.S right after our wedding in may 2015 - and have visa's ect in place before the wedding.

I really miss Seattle and consider it my home! Just trying to find the way to get back there.

Sorry for the looong post, just trying to give as much info to the situation as possible. Any and all help is greatly appreciated!

aribee

Also - if I went as his E3D - Could I apply to have my residency re-instated while already there on E3?

And another thought - if we were to skip E3 altogether, and I get my residency re-instated, and we got married here, could I then apply for him under a K1 visa? What is a CR-1 spouse visa? and does anyone know how long these options take from Australia to U.S? - Again - we want to avoid any lengthy separations. Any and all help is greatly appreciated!

aribee

ok how about this -

person enters U.S on VWP - gets married - files for AOS - Gets approved. lives in us as permanent resident for 5 years ( gets divorced after 3) then leaves u.s to country of origin for family reasons for 2 years. Residency considered abandoned. Applies for residency to be re-instated and is approved. Then moves back to U.S

If that person then marries someone, who is in the U.S on a visa waiver, but whom they met while in country of origin for 2 years, do you think the person on VWP would be denied based on the fact that the green card holder was originally given residency based off marriage to a U.S citizen while on VWP?

scrubbedexpat099

No

aribee

so then you'd think it would be perfectly feasible?

I would think USCIS might believe that VWP entrant had intent to immigrate at POE based of GC holder's previous experience?

scrubbedexpat099

K1 is for USC's.

Abandonment issues are very fact specific , SB1 may not be the best route. Sounds like you need an immigration lawyer familiar with abandonment issues, most are not.

Do I take it that you have no plans to return until after the wedding? Why is that?

scrubbedexpat099

So what?

aribee

so, couldn't they deny the AOS based off their belief that the immigration was pre-meditated?

scrubbedexpat099

No

aribee

ok... anything else to add? could there be any negative repercussions?

ian-mstm

It's true that your green card is no longer valid as a travel document, but that doesn't mean your status as a PR has been abandoned. You are presenting the abandonment as a statement of fact, when the truth is you really have no idea. Time outside the US, by itself, is not sufficient for a finding of abandonment.


Yes.


No.


Yes - but only because it would be less confusing.


It would likely make no difference.


You seem awfully concerned about "dual intent". Almost all visas allow for dual intent. Just because dual intent isn't specifically allowed, it doesn't follow that dual intent is specifically prohibited.


The most effective one is the route that works.


No. The K-1 visa is only for the fiancé(e) of a US citizen.


Is Google broken today?

Ian

md95065

Note that, if the OP's original statement about having left the US in November 2013 is correct, then, so far, they have been out of the US for less than 12 months.

ian-mstm

Good catch - I missed that!

aribee - if you left the US in November 2013, then you have currently been out less than a year and can simply use your GC to return.

Ian

S Folinsky

Yes. Whether it is proper to do so is another question.

aribee

Hi everyone,

First of all I truly appreciate you all taking time to respond to my many questions.

With regards to my "abandoned" residency. I made a typo, I left the U.S in November 2012, so I've been gone almost 2 years. I did however return for 1 month from Dec 2013 - Jan 2014 but I did this on a visa waiver, because I thought my residency was considered abandoned due to this correspondence with the U.S consulate in Sydney:

My Email sent on August 1st, 2013:
To whom it may concern,

My name is *** (USCIS # *****) and I am writing to you today with some questions regarding my permanent residency in the United States.

I am an Australian citizen, and I have a U.S green card, and permanent residency in the United States. I have been back in Australia since November 2012 taking care of my grandmother, and will be return to the U.S in December for at least 1 month.

My question is regarding re-entry into the United States. I was recently told that if I am out of the U.S for more than 12 months, I would lose my permanent residency. I would like to know if this is the case, as when I return in December I will have been out of the country just 1 month more than that. If so, is there anything I can do to prevent this? I was also wondering if I am able to apply for dual citizenship whilst outside of the United States?
Thank you in advance for your help.

Their response on August 6 2013:
Thank you for your inquiry.

U.S. permanent residents holding alien registration cards are permitted to remain away from the United States for a maximum period of twelve months at any one time.

If you remain away from the United States for more than one year, your alien registration card will become invalid for travel to the United States and you will need to re-qualify for an immigrant visa in order to return to resume your residence in the U.S.

For longer absences, a re-entry permit is required. U.S. Citizenship and Immigration Services (USCIS) have sole responsibility for adjudicating I-131 re-entry permits applications. Applications cannot be lodged at U.S. consulates or Embassies overseas.

For further information on the adjudication of these applications, please see the USCIS website at: Homepage | USCIS.

Alien residents who spend several years abroad cannot expect to maintain their resident status simply by traveling once a year to the United States. At any time, the U.S. Customs & Border Protection (CBP) inspector at the port of entry may determine that an alien returning to the U.S. with a green card has abandoned his or her U.S. residence.

CBP has sole responsibility for determining an alien's eligibility for admission to the U.S. as a resident.

For further information on residency requirements for retaining LPR status, please refer to the following website...


The response above is what lead me to believe that my permanent residency would be considered abandoned by now. I have however maintained ties to the us, still filed my taxes, maintained social ties, have bank accounts still open, and even technically own property there..


My concerns with dual intent stem from possibly reading a bit too much on this forum yesterday. I have read that E3 is not a dual intent visa and so if they believe you acquired that visa only to adjust later this could cause issues?

Boiler - the reason to not return until after the wedding would be simply because flying back and forth is quite expensive between Australia and U.S, and the wedding is already half planned and paid for here. Besides it is about 6 months away and that would allow a good amount of time to "finish up" life here and "set up" life for once we arrive there? plus allows time to get visas in place ect?