Out of the US 18 months, reenter on VWP if green card is rejected?

[dcstrom]

I'm an Australian, US Permanent Resident going back to the US for a month in June. I will have been out of the US for 18 months at that point.

I'd like to retain the green card if at all possible, but if I have to give it up, will they turn me away at the point of entry? Or can I enter on the VWP as a tourist?

I still have property in the US and one of the reasons I'm going back is to finalize the sale of the property.

One thing I'm not clear on. When I left the US I crossed the border into Mexico by road. There was no "check out" by US Immigration, I was just waved through. So how can they say I have been out of the US too long, if they don't know when I left?

[Harry Callahan]

Usually (90% of the time) they will ask how long you have been out of the country. You could lie, but this is a huge risk. Lying to a federal official is a criminal offense. If they catch you, you could go to jail. It's true that they will have no record of your exit. So if you stick to your guns you might get away with lying. However, if they really investigate, I bet there is tons of evidence of your time outside of the country (financial records, personal emails, credit card purchases, your smartphone's location history, etc.) that they could use against you. Personally, I wouldn't risk a criminal record and jail time.

The only unquestionably legitimate way to keep your green card at this point is to successfully apply for a returning resident visa: *** (this application process takes a few months). You have to prove that you originally intended to stay abroad for less than one year, and that circumstances beyond your control forced you to stay abroad longer. Most people cannot meet this standard of proof: it's meant for people who suffer major unexpected illness, or get caught in a war, or something like that.

There is a third option, of dubious legitimacy: you could enter the country as an Australian, on VWP, and simply not mention that you have a green card. The problem is that people with green cards are never supposed to enter the US on anything but their green card. However, it's a lot easier to claim ignorance about this rule than to claim ignorance about how long you've been out of the US. Be careful; if they ask you what your business is, and you tell them the whole truth (you're here to sell property), then they might ask about your previous status (green card), and then it's game over. But if you have other reasons to come to the US, then you could give those reasons instead. With luck they won't even notice the existence of your green card. In the worst case, if it comes out that you previously had a green card, you could claim that you abandoned it, or thought you had abandoned it. They might force you to file I-407 on the spot (to formally abandon your green card), but you won't go to jail.

[dcstrom]

Thanks Harry.

In the dozen or more times I've entered the US on the Green Card, I've never been asked how long I was out of the country. However that could be something to do with the fact that each time I left, I left by air and they have a record of me leaving. This time there is no record of me leaving. But it would be easy for them to check stamps from other countries are all over the passport, starting with Mexico. So not only would it be stupid to lie, it would be futile.

What I really want to know is - if they reject the green card, does that mean they won't allow me entry, and send me back to where I came from? Or will they let me enter under the visa waiver system like a normal tourist?

Usually (90% of the time) they will ask how long you have been out of the country. You could lie, but this is a huge risk.