Expired US Reentry Permits

[Hamster39]

Hello all, 

I am a US citizen, my wife is a Chinese citizen but 10-year green card holder, and our 4 year old daughter is a US citizen.  I have been working in China for many years now as an expatriate, working at a stated-owned customer site.  We were supposed to move back to the US back in the 2018-2019 timeframe, but my contract got extended a few times.  Before we left the US to return to China in early Jan 2020 (actual date was around Jan 7th, 2020), we got my wife a 2 year reentry permit that expired in January 2022.  Unfortunately, COVID hit in early 2020, and the China's strict zero-COVID policies were only recently abandoned in early 2023.  Furthermore, my Chinese customer strongly discouraged us from leaving their site/China because we may not be able to return due to their even stricter COVID policies (they required a 42 day quarantine to even be able to apply to return to their site), which would have negative impacts on our contracts with them.  As a result, it was very impractical for us to return to the US to renew my wife's reentry permit which is now 1 year expired. 

Fast forward to today, we have decided we will be permanently moving back to the US around September 2023 timeframe.  Due to my wife's expired reentry permit, but valid green card, we plan to bring the following material to the US Customs Border Patrol (CBP) in case any questions are raised:

a) US tax returns from last year and this year where we always file jointly    

b) A stamped letter from my customer that basically states they discouraged us from leaving due to contractual obligations

c) A letter from my home US based company that confirms we are moving back to the US permanently

d) Perhaps some financial beneficiary statements that show my wife and I are financially tied together? 

My question for the forum is whether anyone has recently traveled back to the US with an expired reentry permit.  Have the CBP been a bit more relaxed on this because they are aware of China's zero COVID policies? I know there is no guarantees and it is at the discretion of the CBP offer, but just looking for some peace of mind.  I believe the CBP officer's goal is to determine whether my wife has no intention of residing in the US, but with the material above, not to mention our daughter also being a US citizen, I'm hoping it will be pretty darn obvious we're staying together as a family.  

Any feedback on your experiences would certainly help.  Any feedback on what additional material we should prep would also be appreciated.  

[Randy W]

There aren't a whole lot of people in the same situation, so I doubt you'll hear from one here.

But I expect you won't have any trouble. Yes, the US CBP has been more lenient because of the COVID situation. She CAN enter the US with her green card, but she may have to go to immigrations court to explain the overstay (they don't deny entry to valid green card holders, but they CAN set a court appearance).

You ARE legally married - that is not the issue, but rather your DOMICILE in the US. a), b), and c) provide the best evidence there - d) less so, but still helpful. Any evidence you have of a residence or even a temporary place to stay would help.

You can also contact the consulate (US consulate in China) to see if they can help expedite her return. The absolute worst case there would be to have to rescind her existing green card and file a new I-130. I don't see that happening. They may be able to help make the entry smoother.

I think you are pretty well covered, especially since you seem to be fully aware of what you may face at the POE.

Good luck and let us know how it transpires.

[Hamster39]

Randy W, 

Thank you for your quick reply. Great comment on the DOMICILE part.  I'm not sure if that will be an issue?  I've been an expat in China for 13 years, so we actually do not have a permanent residence.  Whenever we would return for a visit, and when we permanently return this time, we will be staying with my parents in NJ until we can get settled in our own place.  My tax forms actually show my company's address in Pennsylvania because I didn't have my own permanent residence.  The letter from the customer will certainly not mention my address, but maybe for item (c), I can have my company mention where I will be staying at least temporarily.  Are there any other ways you can think of to mention where I will be staying? 

Thank you for your comment on my wife being able to enter on her green card.  I read on some websites and forums that if the CPB officer is a real tough person, they may separate the family and require my wife to return to China to wait until a court date while my daughter and I can enter.  That just seems overly cruel.  What you said makes a lot more sense in a worst case scenario.  

"You can also contact the consulate (US consulate in China) to see if they can help expedite her return."- What did you mean here? The reason we are planning to move back in September is because that is when my current contract ends, which I do not intend to extend.  In theory, we could return now to renew her re-entry permit, but that just seems like wasted time and money since we will be returning in <7 months anyway. 

Again, truly appreciate your great feedback and quick response.  I understand there are no guarantees but your feedback certainly offers some peace of mind.   

[Randy W]

1 hour ago, Hamster39 said:

Randy W, 

Thank you for your quick reply. Great comment on the DOMICILE part.  I'm not sure if that will be an issue?  I've been an expat in China for 13 years, so we actually do not have a permanent residence.  Whenever we would return for a visit, and when we permanently return this time, we will be staying with my parents in NJ until we can get settled in our own place.  My tax forms actually show my company's address in Pennsylvania because I didn't have my own permanent residence.  The letter from the customer will certainly not mention my address, but maybe for item (c), I can have my company mention where I will be staying at least temporarily.  Are there any other ways you can think of to mention where I will be staying? 

Thank you for your comment on my wife being able to enter on her green card.  I read on some websites and forums that if the CPB officer is a real tough person, they may separate the family and require my wife to return to China to wait until a court date while my daughter and I can enter.  That just seems overly cruel.  What you said makes a lot more sense in a worst case scenario.  

"You can also contact the consulate (US consulate in China) to see if they can help expedite her return."- What did you mean here? The reason we are planning to move back in September is because that is when my current contract ends, which I do not intend to extend.  In theory, we could return now to renew her re-entry permit, but that just seems like wasted time and money since we will be returning in <7 months anyway. 

Again, truly appreciate your great feedback and quick response.  I understand there are no guarantees but your feedback certainly offers some peace of mind.   

I think you're in VERY good shape for an uneventful return. Yes, domicilie IS an issue, but having the company acknowledge your new address would help address that issue.

My understanding is that the Immigrations (CPB) officer CAN'T bar your wife from entry (only the Immigrations Court can do that), but it IS important to be prepared.

You said

"You can also contact the consulate (US consulate in China) to see if they can help expedite her return."- What did you mean here? 

Exactly that. They may be able to offer advice on what you need to do - whether a supportive statement from them, or advice on renouncing her green card if it were to come to that - but, hopefully something in bnetween. Your choice on whether to follow through on that suggestion.

They can tell you if you need and are eligible for an SB-1 returning resident visa.

Qualifications for Returning Resident Status

To qualify for returning resident status, you will need to prove to the Consular Officer that you:

• Had the status of a lawful permanent resident at the time of departure from the U.S.;
• Departed from the U.S. with the intention of returning and have not abandoned this intention; and
• Are returning to the U.S. from a temporary visit abroad and, if the stay abroad was extended, this was caused by reasons beyond your control and for which you were not responsible.

I would use 2 years as a hard and fast limit on when she should return to the US, if not sooner.

You can search for posts containing the phrase "returning resident" for more information. Hopefully, thius link works for that - http://candleforlove.com/forums/search/?q="returning resident"&quick=1&type=forums_topic

Edited February 17, 2023 by Randy W (see edit history)

[Randy W]

I see that most definitions of expedite have to do with quickening a process -  I meant greasing the skids for the process at the POE. Hopefully, the consulate might offer an explanation of the circumstances that would lead the IO to say simply, "Welcome to America!" . THAT process.

Edited February 18, 2023 by Randy W (see edit history)

[Randy W]

Back to the domicile issue - the IO may wonder why you didn't maintain a domicile if your trip was only temporary. Did you sell your home? Were you only leasing a home?

An explanation of the circumstances around you LEAVING the US may be needed. Your orihginal post here isn't entirely clear about that. Did your employment with the US company extend ACROSS this entire period? As I understand it, your company temporarily re-located you to China in 2020?? Or was this an ongoing assignment? For what periods of time has your wife lived in the US? Did she enter originally on an IR visa?

Basically - what is your wife's status as a US resident under the obligations that her green card represents?

Edited February 18, 2023 by Randy W (see edit history)

[Hapa77]

On 2/17/2023 at 12:58 AM, Randy W said:

 

You can also contact the consulate (US consulate in China) to see if they can help expedite her return. The absolute worst case there would be to have to rescind her existing green card and file a new I-130. I don't see that happening. They may be able to help make the entry smoother.

I think you are pretty well covered, especially since you seem to be fully aware of what you may face at the POE.

Good luck and let us know how it transpires.

I don't thing they will do anything my wife is also trying to come back she has her permanent resistance card they told her its up to the cbp. Other option is do the petition all over again

[Randy W]

46 minutes ago, Hapa77 said:

I don't thing they will do anything my wife is also trying to come back she has her permanent resistance card they told her its up to the cbp. Other option is do the petition all over again

Okay - good luck again!

[Martin B]

Here is a reddit post from a green card holder who recently re-entered the US after a 6 year absence without any issues: 

 

My recommendation would be to enter the US through one of the "mega ports" (JFK, ORD, LAX, Miami etc.) where CBP has historically been much more "forgiving" due to the sheer volume of passengers they process versus ports like MSP, PHL, PHX, etc

CBP cannot revoke green cards. They may pressure her to sign an I-407 at which point she should tell them to (politely) get bent. If CBP makes a big deal out of it, she will need to go in front of an immigration judge to plead her case. According to our attorney, immigration judges tend to be incredibly sympathetic and you can obviously bring legal counsel along to the hearing. 

My final suggestion would be to find a US attorney that has dealt with this before and do a 1-hour virtual consult with them. They will probably be up-to-date with the current lay of the land and can offer more precise advice. Good luck. 

Edited February 18, 2023 by Barfus (see edit history)

[Hamster39]

Randy again, thank you! You are so responsive!

I was a young buck when I moved to China in 2010, so I was only renting in the US at that time.  My company offered me an expat position in 2010 for two years, but then kept extending me year after year. So here we are 13 years later with the same company at the same customer site. In essence, the position was never meant to be permanent, but because of my performance and customer satisfaction, I was asked to extend many years in a row. 😀

My wife and I didnt get married until 2016.  She didnt get her green card until 2019 which is when we got the reentry permit. We never "lived" in the US.  We went back to visit MANY times during our dating years and the first few years of our marriage on an IR visa, until she finally got her green card in 2019. The intention was always to move back to the US once my assignment ended, which was supposed to end in 2019, but then yet again, I got an offer I couldnt refuse so extended until now where we are now finally ready to leave.  So yes, my company extended me across the entire 13 year period and i have a copy of each of those signed extension letters.  I'll prep those as well for our reentry back to the US.  Does that enter this question?

"Basically - what is your wife's status as a US resident under the obligations that her green card represents?"

   

[Hamster39]

1 hour ago, Barfus said:

Here is a reddit post from a green card holder who recently re-entered the US after a 6 year absence without any issues: 

 

My recommendation would be to enter the US through one of the "mega ports" (JFK, ORD, LAX, Miami etc.) where CBP has historically been much more "forgiving" due to the sheer volume of passengers they process versus ports like MSP, PHL, PHX, etc

CBP cannot revoke green cards. They may pressure her to sign an I-407 at which point she should tell them to (politely) get bent. If CBP makes a big deal out of it, she will need to go in front of an immigration judge to plead her case. According to our attorney, immigration judges tend to be incredibly sympathetic and you can obviously bring legal counsel along to the hearing. 

My final suggestion would be to find a US attorney that has dealt with this before and do a 1-hour virtual consult with them. They will probably be up-to-date with the current lay of the land and can offer more precise advice. Good luck. 

Thank you Barfus for this additional peace of mind.  We have always flown into Newark because my parents are only a short 30 minute drive from there but maybe we can consider flying into JFK.  Looks like both you and Randy said the CBP can't bar my wife from entering, only make her appear in front of a judge which is good for a worst case scenario.  Only reason I had a question about that is because my company's lawyer, who helps expats with repatriation, was saying the worst case is the CBP officer could send her back to China to wait for her court date, which I was a little doubtful about and just thought that is overly cruel.  But I have a phone meeting with our legal counsel in a week or two and I will question this statement again.  So far our discussions have been over email and sometimes people are less inclined to make "definitive" statements in writing, so maybe our phone conversation will be better.

[Randy W]

3 hours ago, Hamster39 said:

Randy again, thank you! You are so responsive!

I was a young buck when I moved to China in 2010, so I was only renting in the US at that time.  My company offered me an expat position in 2010 for two years, but then kept extending me year after year. So here we are 13 years later with the same company at the same customer site. In essence, the position was never meant to be permanent, but because of my performance and customer satisfaction, I was asked to extend many years in a row. 😀

My wife and I didnt get married until 2016.  She didnt get her green card until 2019 which is when we got the reentry permit. We never "lived" in the US.  We went back to visit MANY times during our dating years and the first few years of our marriage on an IR visa, until she finally got her green card in 2019. The intention was always to move back to the US once my assignment ended, which was supposed to end in 2019, but then yet again, I got an offer I couldnt refuse so extended until now where we are now finally ready to leave.  So yes, my company extended me across the entire 13 year period and i have a copy of each of those signed extension letters.  I'll prep those as well for our reentry back to the US.  Does that enter this question?

"Basically - what is your wife's status as a US resident under the obligations that her green card represents?"

   

Yes, hopefully it does answer it. But has been said, you may run up against a recalcitrant Immigrations official who just wants her to LEAVE. All you can do is to have your explanation ready ( I think it's a good one).

But the issue MAY be that she hasn't LIVED in the US. Have those extension letters ready to show.