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My daughter got her green card in 2012. She left USA in 2013 and did not go back. Now she applied and got her visa. I want to know if she has to apply again for green card and social security or the previous ones which have not expired will be valid.She is 16 and from India

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  • @PaulofOsawatomie does the fact that she's a minor have any bearing on the determination of abandonment? – phoog Dec 1 '18 at 14:31
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    @phoog None at all. There is nothing in the policy manual that gives that leeway. Note that the determination of abandonment is discretionary. There is no defined time period which when a person is away they are deemed to have definitely abandoned residence. They are presumed to have abandoned after one year away however I personally know someone who returned after almost two years and was let in. He never filed the reentry permit document to protect his residency or got an SB-1. The worst the border patrol officer can do is refer you to immigration court. They cannot turn you away. – user 56513 Dec 1 '18 at 14:49
  • Would the application for a visitor visa itself count as evidence of having abandoned permanent resident status? – Patricia Shanahan Dec 1 '18 at 15:22
  • @PatriciaShanahan Not necessarily particularly because she’s a minor. – user 56513 Dec 1 '18 at 15:25
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    Did you become a citizen while she was here or was away? If so she may have become eligible for citizenship when you became a citizen. This is very important because she might already be a citizen automatically – user 56513 Dec 1 '18 at 15:32
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The previous green card can be deemed void because she will be presumed to have abandoned it because she was away for more than a year without a reentry permit. The social security number however is valid for life.

Nevertheless, if she enters using her green card the worst the immigration officer can do is refer her to immigration court. They cannot turn her away. It is only an immigration judge who has that authority to declare definitively that the permanent residence was abandoned

Note that the determination of abandonment by the immigration officer at the airport is discretionary. There is no defined time period after which when a person is away they are determined to have definitely abandoned residence. They are presumed to have abandoned after one year away however if they can provide evidence to show it was out of their control, the immigration judge can make a ruling that they did not intend to abandon it and hence reinstate it.

I personally know someone who returned after almost two years and was let in. The immigration officer didn’t even interrogate in-depth why he was away almost two years. He never filed the reentry permit document to protect his residency or got an SB-1.

In this case I don’t think you want to drag your child through immigration court just to save $1500 or so. Additionally the 5 years absence was prolonged so prospects of winning in immigration court are low.

The problem however is even though she has a nonimmigrant visa, if she enters using the visa she can be turned away at the airport if they dig a little because they can reasonably assume she has immigrant intent and that she is only coming on the visa for convenience and you will file for her when she arrives. That will cause major problems for you. Also remember you will have to wait some months after she arrives before filing for her because of the 90 day rule.

90-Day Rule

Although USCIS has not updated their Policy Manual with a similar rule, adjustment of status applicants would be prudent to assume the same guideline is in place. For example, many attorneys are now advising their clients to avoid marriage and adjustment of status within at least the first 90 days of entry.

CONCLUSION

  • She should formally abandon the permanent residence, then enter on the visa. If questioned she will have to say she’s only visiting her parents. Then 91 days later, you can file a new permanent residence application for her.

  • Alternatively you can let her wait in India while you petition her from scratch and not use the nonimmigrant visa because technically it would be fraudulent to enter with a nonimmigrant visa knowing full well you are going to adjust status.

  • In your comment to the original question, you wrote "The worst the border patrol officer can do is refer you to immigration court. They cannot turn you away." In your Answer, however, you wrote "The problem however is she even though she has a nonimmigrant visa, she can be turned away at the airport if they dig a little because they can reasonably assume she has immigrant intent..." These two statements seem contradictory. Can you resolve them? – David Dec 1 '18 at 15:32
  • @David If she comes in on the visa, she can be turned away. However if she comes in claiming her permanent residence, she cannot be turned away. – user 56513 Dec 1 '18 at 15:34
  • That makes sense. I have amended your answer (in the second and sixth paragraphs) to more clearly differentiate between entry using the green card and entry using the visa. If you disagree, you can of course revert the edits. I think they improve the answer's clarity. – David Dec 1 '18 at 15:55
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I believe your daughter will have a very hard time at the border if she tries to enter with her green card and not the visa she was issued (unless it was an SB-1 visa which allows a permanent resident to return).

First, US Customs and Border agents do have the discretion to detain or refuse entry to people that they do not believe have proper immigration status. Yes there are people who have talked their way in after several years abroad but the officers have also refused entry to people who they considered had abandoned status. And if they do let her in pending a court hearing on deportation status as Paul suggests, this will also mean that your daughter will not be able to leave the USA until the court rules on her status. She’ll have a permanent strike on her immigration record if she loses, which she very likely will. There’s almost no way to argue away that she didn’t abandon her status if she’s been gone for 5 years.

My suggestion is that in your daughter’s case you should consider her green card to be null and void and the USCBP officer will likely consider it that way as well:

  • first, she has left for an extended period of time without asking for a reentry permit that would have kept her status open.
  • second and more damningly she has applied for a visa. This clearly shows she knows she no longer has PR status because she abandoned it and shows that she knows she needs a visa to enter.

If she tries to enter with her green card, the agent will likely ask for her reentry permit or SB1, but she doesn’t have one. If she shows her non-immigrant visa, then she’ll be let in under that non-immigrant visa status which clearly will mean she’s abandoned her permanent residency. She may he asked to formally surrender her old green card and PR status.

If she insists that she be let in under her permanent residency, she’ll likely be detained while CBP explores her status. Their detention cells are miserable and they’ll put a lot of pressure on her to “just go ahead and enter on the non-immigrant visa,” which again will mean abandoning her permanent residency.

There’s no defined limit to CBP detention and really, those cells are miserable. You’ll likely have to hire a lawyer to file a habeas corpus to get her out if they don’t let her out in a reasonable amount of time.

TLDR: you should consider her permanent residency abandoned - once when she left for more than a year without requesting a reentry permit and then the second time when she requested and received a non-immigrant visa. Enter on that non-immigrant visa.

  • In my answer I did not suggest she enter with her green card. I don’t know where you got that from. Please read what I posted again. – user 56513 Dec 1 '18 at 20:04
  • @PaulofOsawatomie I removed that preamble. Your later edits made clearer you weren’t suggesting she try to talk her way in. – RoboKaren Dec 1 '18 at 20:08
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    "USCIS agents do have the discretion to detain or refuse entry to people that they do not believe have proper immigration status": they can't send someone away who has a green card; they don't have authority to find that the status was abandoned. They can try to talk the person into relinquishing the status voluntarily, or they can refer the person to an immigration judge. For a minor, however, I doubt the first option applies. – phoog Dec 3 '18 at 19:26
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    USCIS doesn't process entries to the US. They are CBP agents at ports of entry. – user102008 Dec 28 '18 at 3:10

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