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How can my grandpa go back to US again?

Jacksonville, FL |
Filed under: Immigration

My grandpa who use to be an immigrant( petitioned by his brother in 90's) took a vacation in Philippines last 2008 and overstayed. His visa is now expired(I dont know whats the term for that). Should my Aunt who is an American citizen should repetition him(1-130)? Or is there any other way to get him back here. How long is the process?

Attorney Answers 6

Posted

He can try to return on his green card, at the risk that they will find that he abandoned his status by leaving for four years. His sister can file a visa petition for him, and it will take about 25 years for the visa to be available.

The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.

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2 comments

Stephen D. Berman

Stephen D. Berman

Posted

Correction, I apologize. If his daughter is a US citizen she can file a visa petition for him and he can immigrate again, it takes only about a year.

Asker

Posted

Is that I-130?

Posted

I think there are some facts missing such as whether or not your grandpa had a green card or simply and I-130 filed for him by his brother. Please clarify or retain counsel to discuss fully and assess all options.

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9 comments

Asker

Posted

Yes he was petition by his brother and was approved.

Philip Alan Eichorn

Philip Alan Eichorn

Posted

The approval of the petition only qualifies the relationship. It does not grant status. He would have needed to adjust status if he was here in the U.S. or depart and return through the consulate if it was a preference category petition. You need to ascertain if he had a green card or not which is proof of status.

Asker

Posted

Sorry if Im confusing you, but yeah, he use to stay and work here in US. Although he took a vacay and overstayed in Philippines.

Asker

Posted

Yeah he had a green card.

Asker

Posted

Dont you need a green card to work or stay here?

Philip Alan Eichorn

Philip Alan Eichorn

Posted

If he had a green card, then it should still be valid and he should be able to reenter the States unless he abandoned his status. If CBP thinks he's abandoned his status then they'll put him in removal proceedings accordingly.

Asker

Posted

Yeah,I think he abandon his status. Can my Aunt(her daughter) petition him again? Should she file I-130?

Philip Alan Eichorn

Philip Alan Eichorn

Posted

Your grandfather's daughter could file for him if she's a U.S. citizen or an LPR and then he'd have to go through the consular process.

Asker

Posted

You mean I-130,correct?

Posted

If he had a green card, he can try and return and if placed in removal, the aunt (his daughter) can always re-petition for him as they are what is considered immediate relatives. You should talk to an attorney before you do anything.

This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.

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Posted

You should definitely consult with an immigration attorney for the particulars. A permanent resident is not regarded as seeking an admission unless he or she has been absent from the
United States for a continuous period in excess of 180 days or has abandoned or relinquished his or her status.
[INA §§ 101(a)(13)(C)(i), (ii).] At the port of entry, a CBP official may accuse a permanent resident of having abandoned his or her status or may question the permanent resident about his or her trips abroad. It is extremely important that the permanent resident answer questions truthfully, as false statements or misrepresentations could not only close off a favorable exercise of discretion down the road, it could also trigger a separate ground of inadmissibility. [It can be argued that a misrepresentation is material only if the lawful permanent resident abandoned his status.]
The permanent resident may have limited access to family members or counsel and will to a large extentbe at the mercy of the CBP officer. The CBP officer may pressure the permanent resident to sign an inaccurate or incomplete sworn statement or “voluntarily” relinquish permanent resident status by threatening him or her with detention or removal proceedings

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Posted

To determine whether he has alternatives more information is needed. For a free initial consultation contact my office in Jacksonville (across the street from the USCIS).

Kyndra L Mulder, Esquire
(904) 296-7702

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Posted

If the reason he overstayed were for causes outside of his contol such as medical problems, etc. it could be possible to get a permit to enter the United States from the American consulate. This is very difficult. Probably the best chance is for your aunt (his daughter) to file a petition for him, assuming she is over the age of 21.

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