I am a US citizen (born & raised). My wife, a Chinese citizen, applied for a visa to visit my family. But, was turned down. Oddly, they recommended we apply for a green card so she could go to the USA for a visit. I work as a teacher and consultant in China. She received her 2-year green card at July 3rd 2006. I work teaching in China, and we only planned to visit my family (since they've never met her). We did visit for July 4th 2006, and returned to my job in China by about July 26th of 2006. We haven’t gone back since.
There are mixed signals at the Guangzhou consulate. First, there is a I-407 where she’d give up her green card and residency in the USA. But some people at the embassy (Chinese advisors), say she should use SB-1 visa form, pay 400 USD to be evaluated and likely ‘denied’ an extension. Where upon after a second fee, she’d possibly be THEN be told to do the I407, and ‘reapply’ for a new immigration visa.
We, my wife and me, would like to know how we should proceed to secure a New Green card when, in 2008, we plan to establish a permanent home stateside (my work in China will be mostly completed), so we can then start our own family (children).
Please advise as to if it is ‘wise’ to not go through the expensive SB-1 apply, denial, etc. process….and to simply go ahead and give up the current green card & residents (I407), and then reapply for a immigration visa?
Thank you for your advise and informative details.
Originally posted by usfamily77: I am a US citizen (born & raised). My wife, a Chinese citizen, applied for a visa to visit my family. But, was turned down. Oddly, they recommended we apply for a green card so she could go to the USA for a visit. I work as a teacher and consultant in China. She received her 2-year green card at July 3rd 2006. I work teaching in China, and we only planned to visit my family (since they've never met her). We did visit for July 4th 2006, and returned to my job in China by about July 26th of 2006. We haven’t gone back since.
There are mixed signals at the Guangzhou consulate. First, there is a I-407 where she’d give up her green card and residency in the USA. But some people at the embassy (Chinese advisors), say she should use SB-1 visa form, pay 400 USD to be evaluated and likely ‘denied’ an extension. Where upon after a second fee, she’d possibly be THEN be told to do the I407, and ‘reapply’ for a new immigration visa.
We, my wife and me, would like to know how we should proceed to secure a New Green card when, in 2008, we plan to establish a permanent home stateside (my work in China will be mostly completed), so we can then start our own family (children).
Please advise as to if it is ‘wise’ to not go through the expensive SB-1 apply, denial, etc. process….and to simply go ahead and give up the current green card & residents (I407), and then reapply for a immigration visa?
Thank you for your advise and informative details.
Not sure from your post, does your wife already have a green card or not?
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre
Dear usfamily77, After rereading your post again, I think your wife has her conditional residency card. You may need to go through the EB-1 process. The reason why it will be much shorter, although much more expensive, for your wife you receive her permanent green card by the time you want to establish your home stateside. if you go the other route, it will take longer because you will have to go through the CR1 or IR1 process, which takes two years or longer. The choice is yours.
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre
Yes, she did received the 2-year green card Jul 3rd last year. We haven't been back to the US for more than 12 monthes, so technically, her 2-year green card is invalid.
We went to Guangzhou Consulate(China), They only wanted my wife to apply for SB-1 visa which I know it will be declined since she is not qualified for extreme circumstances beyond our control.
My question is should she abandon her residence first? Would this effect on her new immigration visa interview? How soon can my wife apply for a new immigration visa after she abandon my residence?
I read in the consulate Homeland Security website in Indian, UK, Finland etc, it clearly stated: Abandon the residence won't affect the new immigration visa in the future. But can't find such info in the consulate website in China. Should this policy be the same worldwide since it's under the section of Homeland Security online?
It's a very unusual case, I don't think the Chinese consulate ever faced it before.
I don't think she qualifies for EB-1 which is for aliens of extraordinary ability engaged in the arts, sciences, business, education or athletics which she has none of those.
We are ready to go through the whole process of IR1 since we will be Direct Consular Filing (DCF) which won't take that long.
We can't reapply for a new immigration visa until the current residence is abandoned. But the consulate in Guangzhou said: you just can't abandon the residence and apply again. The officer seemed inknowledgeable and really doesn't care. How can I convince them this is can be done cause no law says it can't be done. Can I show the consulate that in Other countries Homeland Security says: the residence won't affect the new immigration visa in the future.
Originally posted by usfamily77: Thank you for the reply.
Yes, she did received the 2-year green card Jul 3rd last year. We haven't been back to the US for more than 12 monthes, so technically, her 2-year green card is invalid.
We went to Guangzhou Consulate(China), They only wanted my wife to apply for SB-1 visa which I know it will be declined since she is not qualified for extreme circumstances beyond our control.
My question is should she abandon her residence first? Would this effect on her new immigration visa interview? How soon can my wife apply for a new immigration visa after she abandon my residence?
I read in the consulate Homeland Security website in Indian, UK, Finland etc, it clearly stated: Abandon the residence won't affect the new immigration visa in the future. But can't find such info in the consulate website in China. Should this policy be the same worldwide since it's under the section of Homeland Security online?
It's a very unusual case, I don't think the Chinese consulate ever faced it before.
Thank you
Abandoning the current visa and reapplying for a new one will take time, over two years. Applying for the SB1 will take less time and should be available by the time you and your wife return stateside. But if she abandons her current green card and reapplies for the special immigrant, she will need to prove that the circumstances were outside her control and she had no intent to abandon the green card anyway. Part of this is whether the two of you file income tax returns. Remember, as a USC or Permanent resident, you must file income tax returns regardless of where the income is derived or where you live. Both of you most likely will meet the foreign earned incime exclusion, form 2555, and probably not have to pay any income tax, assuming your income and her separate income were below the $80000 foreign income exclusion amount. It also helps her that she never intended to abandon her residency status. For more tax info, see the the IRS Web Site.
However, the US Consulate in Guangzhou does have some information abuot the SB1 or reapplying for the IR1.
"I'm a green card holder who has been abroad for more than one year, how can I return to the U.S.?
"You should prepare the following documents:
"1) Original passport, green card, re-entry permit and/or other valid identification documents.
"2) An explanation in English and Chinese, explaining the reason for your overstay.
"3) All evidence attesting to the reason for your overstay. For example, if a medical condition prevented you from returning to the United States, provide all relevant medical records, such as hospital records and doctor’s statements. Translate all material into English.
"When you have assembled the documents required and completed form DS-117, Application to Determine Returning Resident Status, return to the Consulate any Monday to Thursday at 10:30 a.m. After paying the application fee of $400 or RMB3, 320, a consular officer will interview you. At that time, the officer will only determine if you are eligible to apply for an SB-1 visa.
"If the officer determines you are eligible, the consulate will send you an IV instruction packet and you must wait for a second interview. On the day of the second interview, you must pay an additional visa-processing fee of $380 or RMB3, 154. Approval of the opportunity to apply for an SB-1 Visa does not guarantee the Consulate will approve your visa. A consular officer will make this decision only after he/she has conducted the second interview and reviewed all documents presented.
"You must have evidence in both interviews that extreme circumstances beyond your control prevented your return to the United States. Whether or not an officer approves your application at either interview, the Consulate cannot refund either fee." http://guangzhou.usconsulate.gov/iv_faq.html
This message has been edited. Last edited by: Hudson,
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre
Originally posted by usfamily77: Thank you Hudson,
I don't think she qualifies for EB-1 which is for aliens of extraordinary ability engaged in the arts, sciences, business, education or athletics which she has none of those.
We are ready to go through the whole process of IR1 since we will be Direct Consular Filing (DCF) which won't take that long.
We can't reapply for a new immigration visa until the current residence is abandoned. But the consulate in Guangzhou said: you just can't abandon the residence and apply again. The officer seemed inknowledgeable and really doesn't care. How can I convince them this is can be done cause no law says it can't be done. Can I show the consulate that in Other countries Homeland Security says: the residence won't affect the new immigration visa in the future.
Thank you
My mistake, I meant SB1, not EB1.
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre
Originally posted by usfamily77: Please advise as to if it is ‘wise’ to not go through the expensive SB-1 apply, denial, etc. process….and to simply go ahead and give up the current green card & residents (I407), and then reapply for a immigration visa?
Yes by all means, you figured it out..
Depending on when in 2008 you plan to return to the USA, you can time the new petition. I recommend you look into and do it by way of "direct consular filing" (probably you've done it this way the first time as well).
Would be interesting if your wife happens to return the GC to the same person who recommended she applys for GC. I would love to be able to say "I am returning it because I only wanted to visit and you did not believe me...".
I have the SB1 visa info with the form DS-117 in my hand which I got from Guangzhou Consulate couple of days ago. It explicitly said: You must have evidence in both interviews that extreme circumstances beyond your control prevented your return to the United States.
We do not have such evidence, so the SB-1 visa will be declined for sure by wasting 400usd.
If she abandons her residence, and start reapply for a new immigration visa immidately (visa process time for Direct filling is less than 1 year) we should be able to receive her new immigration visa in one year.
SB-1 just doesn't make sense when you know you will be declined.
I read in the consulate Homeland Security website in Indian, UK, Finland etc, it clearly stated: Abandon the residence won't affect the new immigration visa in the future. But can't find such info in the consulate website in China. Should this policy be the same worldwide since it's under the section of Homeland Security online?
It's a very unusual case, I don't think the Chinese consulate ever faced it before.
Thank you
Can anyone answers my question in Quote? Can I convince the Guangzhou Consulate with the evidence that I found in the US Homeland Security Deparment in other countries for the abandonance of the residence since the Guangzhou Consulate never dealt with this before?
When I read your question, my first response was to say that all overseas consulates would have the same visa policies, but then I thought about it, and I'm thinking that China may be different with their visas. I couldn't tell you for sure. Is there a way you can call the embassy and ask someone?
hmmmm,,well i was wounder if he can apply for k-3 visa instead?hes allready married and even if she lost her previous status ,,i think she will be able to obtain the k-3 visa?and the process is much shorter?6to7 months until she gets her visa?can she apply for k-3?
...................................................................................................................................... impossibility is a word found only in the dictionary of fools
Originally posted by usfamily77: It's not about what kind of visa she can apply, it's the Guangzhou embassy won't allow her to abondon her residence first then reapply..
Is that the fact or opinion of one, not so well informed, clerk? How many times did you ask? How many different officers?
I read in the consulate Homeland Security website in Indian, UK, Finland etc, it clearly stated: Abandon the residence won't affect the new immigration visa in the future. But can't find such info in the consulate website in China. Should this policy be the same worldwide since it's under the section of Homeland Security online?
Can I convince the Guangzhou Consulate with the evidence that I found in the US Homeland Security Deparment in other countries for the abandonance of the residence since the Guangzhou Consulate never dealt with this before?
I wouldn't worry what is or what isn't on the web-site... It just may not happen that often in China that one returns GC. On the other hand, I've been to the US consulate where there is a separate "window" for returning GCs.
And the question may be asked in many different ways. - My wife is PR, we don't live in the USA, and if she now returns GC, can I sponsor her again if we, at some point, decide to return to the USA?
the only thing that i can think of is to call ur congress man,,,they have the power to change things very fast,,,and a letter or fax from them to the embassy ,,they will change everything ,,believe me,if they get involved they will help u and get u an answer in few days,,dont think and break ur head ,,just call them and they will have to help u ,,good luck
...................................................................................................................................... impossibility is a word found only in the dictionary of fools
Originally posted by usfamily77: It's ture, I only asked one officer.
I will go to the consulate again.
My question is:
I read in the consulate Homeland Security website in Indian, UK, Finland etc, it clearly stated: Abandon the residence won't affect the new immigration visa in the future. But can't find such info in the consulate website in China. Should this policy be the same worldwide since it's under the section of Homeland Security online?
Can I convince the Guangzhou Consulate with the evidence that I found in the US Homeland Security Deparment in other countries for the abandonance of the residence since the Guangzhou Consulate never dealt with this before?
Each consulate operates independently from consulates in other countries while beholden to the generalities of immigration law. It may affect or it may not affect your wife's situation depending on the consular, the questions asked in the interview, and your answer. But asking another consulate officer may help. However, in my experience with the Guangzhou immigration office, you can get the right answer to your situation and when the interview comes, the consular would give a completely different answer.
quote:
Thank you Hudson,
I have the SB1 visa info with the form DS-117 in my hand which I got from Guangzhou Consulate couple of days ago. It explicitly said: You must have evidence in both interviews that extreme circumstances beyond your control prevented your return to the United States.
We do not have such evidence, so the SB-1 visa will be declined for sure by wasting 400usd.
If she abandons her residence, and start reapply for a new immigration visa immidately (visa process time for Direct filling is less than 1 year) we should be able to receive her new immigration visa in one year.
SB-1 just doesn't make sense when you know you will be declined.
Personally, I think the office made a mistake by providing a green card to your wife and not a multi-entry visitors visa. The reason is this: when you applied, you and your wife were living in China, you were going there for her to meet your family, and the both of you will be returning shortly back to your jobs. If she had any property, this will also indicate she will be returning and does not have any indication of staying in the US on a permanent basis at that time. Furthermore, if the office knew that the two of you were not returning to the US in more than 6 months, they should have advised you about the advanced parole. Given that your wife will not have control over this, it is possible to argue that hse had no intentions of abandoning the green card. Remember, evidence can include mistakes made by the consular office for issuing the wrong visa given the set of circumstances. But this is also risky given your set of circumstances.
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre
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