rachococo

Hi, I have searched the forum and haven't found anything directly related to my situation so I hope I am not duplicating. I lived in the US from Feb 2011 - Sept 2013 and had a Green Card, moved back with my US husband and dual citizen daughter in September 2013 as I was offered a funded place on a doctorate. We are visiting the US at the end of the month and I am confused what to do with the ESTA.
Should I apply for an ESTA even though I have my Green Card?
My husband has a 2 year spouse visa for the UK (which we will be updating to ILR shortly) - does he need an ESTA?
My daughter has dual citizenship - if she travels on her US passport I am assuming she won't need an ESTA? But should she travel on her UK passport if she is currenlty living here?
Thanks so much

BTJ

Do you mean September 2012? Your daughter must enter and leave the US using a US passport, she will not need an ESTA. I am not sure what to do with regard to entering on VWP or as LPR.

rachococo

SORRY!!! I meant February 2010-September 2012, and my husband has KOL req'd.

Rete

The problem is not your trip back to the US for a visit. No, you do not have to do the ESTA. However, I do hope you are aware and have perhaps consulted with an immigration attorney regarding maintaining your residency status in the US while you are living in the UK.

Your green card means that you reside in the US and you are now residing in the UK. You have already been gone for 10 months and are probably going to be gone for another few years. Unless you have applied for a re-entry permit via the filing of form I-131 which is good for two years, you might well be judged to have abandoned your green card when you next enter the POE. Do you still have a home here in the US? Do you have bank accounts in the US? Did you file US taxes for 2012? All this shows that you are only away from the US temporarily.

the I-131 can be applied for when you are next here but you need to remain in the US for the biometrics before you leave again and you need an address to have it sent to.

rachococo

Thanks for your reply. We will most likely be in the UK for at least the next 3 or 4 years, so I didn't bother to apply so I could return within 2 years as it would not have been relevant. I have kept USA bank accounts and credit cards and we did file 2012 tax returns, but we do not have any property in the USA. Is there anyway to keep the Green Card open for longer or will I have to reapply from scratch if I ever did decide to go back to the USA to live (this isn't in my future plans at the moment - but you never know!).

So should I enter the USA on my Green Card even though I am not normally resident there?

Michael

I've heard of people getting multiple reentry permits especially those attending school. You could apply for one when you enter this time and then another if you enter in two years. Since you have a green card, they have to let you into the US but could possibly make you appear before an immigration judge (highly unlikely for such a short period of time out of the country) if you want to keep your green card. I've also heard of people returning after 4-5 years and not even questioned about their extended stay abroad.

Everything about an extended stay abroad is a very grey area.

rachococo

Thanks for your advice - so I shouldn't apply for an ESTA? Should I say we are all currently living in the UK?

Noorah101

If you are going to try to enter the USA using your green card, you don't need ESTA.

No, because that's not the truth. You should only answer the specific questions asked at the POE, without volunteering further information unless specifically asked.

Rene

Noorah101

You can try.

If your stay in the UK is temporary, you should apply for a Re-Entry Permit when you are in the USA. You will need to stay in the USA long enough to get your biometics done, but then you can leave the USA, and whoever checks your mail in the USA can send you the document.

Make sure you maintain your ties to the USA - US address, banking, file a tax return each year (your USC spouse needs to do this anyway, if he's earning enough, and so do you, as a US PR). You need to be able to prove your time away from the USA is temporary in nature, and that you do not intend to abandon your US residence.

The down side, from what I can see, is that your USC husband has applied for ILR in the UK, which sounds fairly permanent (but I don't know much about UK statuses). This makes your stay in the UK sound more permanent than temporary.

Contrary to your thread title (which says "living in UK, visiting US"), if you truly want to remain a US PR, you will have to adjust your thinking to "temporarily staying in UK, going back home to US". As a US PR, the USA is your home, and you are only "staying" the UK for an extended time.

Rene

rachococo

Thanks for your response. I have no plans currently to return to the USA, have started a three year doctorate last September (the reason we moved back), and have to work in my field two years after graduating. However, all my husbands family are in the USA and I have learnt to expect the unexpected! I am concerned about making this trip as stress free as possible and want to make sure I do everything I should when visiting, we are going on vacation with my husbands family, I am pregnant and my daughter is a nervous traveler. Maybe I should apply for an ESTA for myself just invade and have my green card, and my husband and daughter use their US passports? I am concerned about not getting an ESTA and having problems at the airport, especially in the circumstances.
Thanks

nun

As far as the US is concerned you are a permanent resident until you renounce the green card or INS deems that you are no longer living in the US and takes your green card away. If you no longer have a US address and have no immediate plans to return to the US you are in danger of having your Green Card taken away.

In circunstances where you have a spouse and child who are US citizens it's bets to get US citizenship too so that you have complete freedom to live in the US with your family. I'd also advise your husband to look into UK citizenship.

Noorah101

If you apply for ESTA and travel on the VWP on this trip, it goes against you if you plan to keep your US PR active. However, since it seems you're not really planning to remain a US PR anyway, you could apply for ESTA and travel on the VWP instead of claiming to be a US PR.

Is there a reason you think ESTA won't be approved?

If you use your green card to enter the USA, the POE officer could give you a lecture, but he has to let you enter the USA. The worst case scenario is that he allows you to enter with the understanding that you will go before an Immigration Judge who will make the final determination whether you've abandoned your PR status or not. This is probably not something you want to deal with on a family vacation, though.

If you really are not planning to live permanently in the USA again, you can always formally give up your green card (there's a form to fill out and submit), and just travel on the VWP for vacations to the USA. If you ever do want to move back to the USA, you can do the Immigrant Visa process again.

Rene

lansbury

If you are not intending to return to the US to live, and go on this visit using the VWP you might just as well fill out the forms to surrender your US LPR status, and return your Green Card.

rachococo

Thanks for all the responses. Although I have not ruled out returning to the USA to live, this will probably not be for another 3 years to finish my studies and get a years experience. I am thinking I should get an ESTA and be prepared to give up my Green Card status rather than risk travelling in and having to answer to an immigration judge. It is a 2 week vacation with return tickets booked so there shouldn't be any question that we are currently living in the UK.
But, I am scared that my ESTA will denied because I have a green card, and then I won't be able to travel at all, I am leaving on Saturday. There is no other reason why my ESTA should be denied but I wasn't sure if they can deny it I you already have a green card. Any advice much appreciated.
Thanks

AdobePinon

You should be aware that 'going to school' in some capacity is usually an acceptable reason for not living in the USA while under permanent resident status.

It is one part, but a pretty big one, of the picture. Quit goofing off and consult an immigration attorney - you *may* be fine in continuing to use your green card. Do you want to go through the effort of applying for another one later? Also, are you sure that you'll perform that year of experience in the UK?

Now, if you really want to give up the green card, you know what to do.