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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94774
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I have been out of the US for 3 years, initially went for a

Resolved Question:

I have been out of the US for 3 years, initially went for a 6 month holiday to spend time with my 2y/o son but then due to financial reasons and problems with my ex I had to stay in order to look after him. The entire time i've been wanting to get back to the US and continue residency - filing my taxes, not working in australia, but all in all it has been to look after my son.

Last time i entered the US after a 2 year absence (which is when my daughter was born in 2007) i went in 2009 and resumed work, had no issue at LAX I was able to walk on through using my greencard.

What are the chances I'll be denied entry now? Should I wait and apply for SB-1? What are the implications if i enter on Visa Waiver and then apply for my greencard renewal and keep working?

thanks!
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. Thank you for using our service. All I ask is that before you sign off, you rate me positively. If you are inclined to use the "poor service" or "bad service" options, please ask follow-up questions first and give me a chance. Sometimes the law doesn't have a good solution, but I will try hard to find it if it is available.

Unfortunately, that's probably not going to happen. Please do not shoot the messenger. I am not responsible for the broken and unfair system of laws we have in the U.S. I assume that you did not have a Re-Entry Permit before you left the U.S.?

Did you have some URGENT reason, like Cancer or some other harsh medical reason or something like that for being outside of the U.S. for more than 1 year? Was your stay over 1 year reasonable due to the circumstances?

And how did you obtain your Residency originally?

Customer: replied 1 year ago.

hi - and of course no worries i'm paying for impartial advice :) actually it was july 2011 that i flew out, not at all intending to stay longer than a year.


 


i didn't get a re-entry permit because i never intended for a second to be gone so long!


 


i got my greencard originally with a fortune 500 company, worked for them for 6 years and it took about 4 years to get my greencard finally approved in 2004.


 


by "that's not likely to happen" you mean i'm not likely to be approved a returning visa? or i'm likely to be detained at LAX?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Anyone that is a Lawful Permanent Resident (LPR) and is outside of the U.S. for 180 days or more within any 12 month period (not necessarily calendar year) creates a rebuttable presumption of abandonment of residency. That presumption can be rebutted by evidence to the contrary such as filing U.S. taxes, maintaining a home in the U.S. and paying that mortgage or rent, maintaining a U.S. drivers license, U.S. bank accounts with significant movement, etc.


Someone that has been outside of the U.S. for more than 1 year without first having an approved re-entry permit has abandoned their residency and only in very few exceptions (such as serious illness) can they get it back.


So if you have been outside for longer than 1 year and you do not have a Re-Entry Permit and you did not have an emergency reason beyond your control to be outside of the U.S., then you have abandoned your Residency and are in the same position as anyone else to get a new one, which means, not a good chance.

There are 5 ways to come to the U.S. to live permanently. They are through family, through employment, through asylum, through investment, or through the lottery.



For family, it must be immediate family such as U.S. Citizen spouse or U.S. Citizen children over 21 in order to be able to come immediately. U.S. Citizen or Lawful Permanent Resident parents or U.S. Citizen siblings, or Lawful Permanent Resident spouses can also help you, but the wait for that is about 4 to 12 years or so.



Through employment, you would have to generally prove that you would not be taking away a job from a U.S. worker and the less experience and education you have, the harder that is to do.



Through asylum, you must prove that you will be persecuted, tortured or killed if you stay in your country and that this will happen to you because of your nationality, race, religion, political opinion, or membership in a particular social group, not because you would run the same risk as anyone else in your country to fall victim to a crime or bad economic conditions.



Through investment, you are looking at generally $1,000,000.00 for a residency, or $500,000.00 in an area designated as a high-employment area, plus in both cases the investment has to create 10 or more jobs for U.S. workers.



And through the lottery, it would be very difficult to win one of the 50,000 visas available per year and some countries do not qualify.


I am truly sorry, but I seriously doubt that with a 3 year stay outside of the U.S., you would be able to prove that it was an emergency and reasonable. I wish I had better news for you.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
Customer: replied 1 year ago.

it's ok! i appreciate your efforts although i have found all this information online previously.


 


as i said it was 2011 july so it's actually under 2 years as of today, do you think it's worth trying to show tax filings and evidence of property and talk about the financial hardships.. or is that not enough? also my dad was diagnosed with dementia so that also added to the need to be around, but all the time I never turned my back on the intention to return to the US as soon as possible...


 


thanks for your advice, it's much appreciated and it's ok if it's bad news :)


 


cheers!


dc

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Sorry about that. Unfortunately, I am not a mind reader (wish I was), so I have to assume that the person asking knows nothing about the process. But that's ok. I definately think it is worth it to try to fight to keep it, but it won't be easy. Keep in mind that even though you say you did not intend to abandon your Residency, your actions state otherwise and that's what the judge will look for. They will also look to see that you came back as quickly as you could in regards XXXXX XXXXX circumstances. So the longer you stay out, the worse it is.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94774
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
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