IR-1/CR-1 visa holder and the SB-1

[GoThere 0]

(Forward apologies for the long post)

I've gotten myself into a bit of a mess. In January my wife and I successfully entered the US on her I-130 that we got in mid-December. We left back for her country as I needed to finish a project at had at work (I work in her country), and we also needed to pack up everything and make the move for good. We were planning to return to the US in Autumn. According to the US Embassy and USCIS, this is fine as long as we are back in the US before a year passes.

Well, my wife is now 6 weeks pregnant and I'm in a bit of a fix. My wife now wants to have the baby in her country as she feels safer about it. If she stays for the next 8 months though, she's going to lose her visa according to the rules. With our luck thus far I'm sure we'd lose it. I know she is worried about having a baby in the US because we don't know how long it will take me to get a job and be eligible for health insurance. In her country she has insurance form her current job and there is also national health insurance. Also she has limited English ability at this time. She does well with daily conversation and what not, but medical topics are hard to understand. She sees how I struggle to understand what the doctors are saying in her language and perhaps she is worried she won't understand doctors in the US. I can understand that.

So I'm trying trying to get together all of the information I can about our options so that I can discuss it all with her. Maybe we just have to have the baby in the US and we'll just have to do our best. Still, it can't hurt to research the issue at hand. At this point, I can think of two options.

One is the I-131 re-entry permit. I can leave my job once the pregnancy becomes stable and we can move back to the US now. She could come for a few months in the middle of the pregnancy when it is relatively safe to travel and the pregnancy is stable. Then when she gets her I-131 approved, she could go back to Japan and have the baby. Though she can stay with her parents, I'll probably need to remain behind and keep the job so that when it is safe to take the baby on the plane, she can come over here and we'll have a place to live of our own and there will be health insurance for the family.

The second is the SB-1 returning resident visa, which I have been reading about on this forum and on the Internet in general. We'd definitely be over 12 months since she was last in the US, probably about 13 or 14 months. However, the State Dept. information says the following:

Permanent resident aliens who are unable to return to the United States within the travel validity period of the Alien Registration Card (less than a year), or the Reentry Permit, may apply for a special immigrant Returning Resident (SB-1) visa. To qualify as returning resident, you must show:

1.

that you were a lawful permanent resident when you departed the United States,

2.

that when you departed you intended to return to the USA and have maintained this intent,

3.

that you are returning from a temporary visit abroad and if the stay was protracted, it was caused by reasons beyond your control and for which you were not responsible,

4.

and that you are eligible for the immigrant visa in all other respects.

While points 1,2 and 4 are all "check", point 3, as I have emphasized and underlined, might be a problem. I'm not sure that becoming pregnant is something caused by reasons beyond our control and for which we were not responsible. I'm also relatively sure that USCIS and State Dept could care less about our health insurance status and the challenges of giving birth when when you can't understand the doctors.

Has anyone ever been in this situation? Any ideas? I'm still trying to get over the shock of the though of becoming a father and I'm sure I am not thinking 100% clearly. Thanks for listening and thanks for your input!

[Delicia 1]

I am not sure how you can fit #3 into your situation. Clearly, your wife's pregnancy is under your (or both of your) control and your ability to travel back to the U.S. is available. I would think #3 would apply more to things such as natural disaster, war, etc that would prevent you from activating/re-entry on the visa within its time limits. In my opinion, you have 2 options: 1) move to the U.S. and activate/reenter or 2) stay in her home country and start over from scratch when you are ready.

Edited May 20, 2008 by Delicia