and is a permanent resident. Question is if my son wants to visit his dad over the next few years for vacation time, will he still be allowed to enter the USA even though his green card will not longer be valid.
thank you
This is one of these questions the lawmakers never anticipated when they made the laws. There are two issues: someone who does have a green card and then moves abroad: will he lose the green card or not. Normally you do lose it when you will be found to have "abandoned" your residency. That usually happens when you take on a job abroad, have given up your home etc. in the US and have no intention to return to the US. But here the issue is, how can that be attributed to a child who usually is not being asked where he wants to live.
To make the answer short, it is likely that he will be found to have abandoned the residency when he lives with the parent who has legal and physical custody abroad.
Then the issue will be: can he be admitted as a tourist? To be admitted as a tourist you have to convince the officer at the airport that you do not intend to stay in the US. Now, a child asking for admission to the US whose one parent lives in the US could be looked at as someone who wants to stay forever with that parent and therefore not as a tourist. That could become a problem especially when the child gets older.
The decision in the end will be made by the CBP officer. To be admitted as a tourist, the son should always carry papers that show that the parent living abroad has legal and physical custody, that he is enrolled in a school in that country and that he has a return ticket.
Wolf W. Kaufmann
Southern California Immigration Attorney
www.wolfklaw.com
951-710-3250
This post is intended to be of general educational nature only and cannot be a substitute for detailed legal advice in your case. No attorney-client relationship is being created by this post.
It would probably be wise for you and your son to surrender your green cards to the US embassy in London along with Form I-407. You will each get a copy of the I-407 back from the embassy as evidence that you have given up your permanent resident status, and your son should carry this with him on his visits to the US. Go to the web site for the US embassy in London and you will find instructions for doing this by mail. Then your son can travel to the US using the visa waiver program (he needs to complete an online ESTA authorization first).
I disagree with the answers previously provided to your question. They both assume that you want your son to abandon his residence. Right now you may plan on his spending the majority of his time in the UK, but as children grow older, plans can and do change. Your son may desire to return to the U.S. on a more permanent basis in the future. There is no such thing as getting back an abandoned green card. It will be necessary to go through the application process in full again.
The prudent thing to do in this case is to apply for a re-entry permit. This will allow your son to be outside the U.S. for up to 2 years at a time without fear of losing his residence. Additionally, the re-entry permit can be renewed. However, it is important to understand that the alien must be physically present in the U.S. at the time the application for a re-entry permit is filed.
I suggest you consult with a qualified immigration attorney who can explain to you the options available so you do not foreclose any opportunities that may arise in the future.
