SB-1 VISA HELP

[chemarc 0]

Hello,

This site has helped me a lot in the past when I filed the i-130 for my wife, but now I have another big Immigration problem. I was wondering if anyone could help?

The Issue:

My wife left the USA as a legal permanent resident (conditional residency status, I-751 filed and extension on Card granted until Sept. 2011) to Bolivia, her country of citizenship, temporarily on April 14, 2010 with the intention to return back to America. In October 2010, she had given birth to our son, who is now 6 months old. I was in Bolivia from October until December for the baby's birth as well as to fix his papers so he can have US citizenship. We did not receive his US Passport until March of 2011.

The problem is that my wife went to leave Bolivia with our two sons on April 22, 2011, and was stopped at the airport (in Bolivia), where immigration had told her that she cannot travel due to the fact that her stay outside of the US was more than one year: 1 year and 8 days to be exact. I spoke with the US embassy in La Paz, Bolivia and they basically told me I had two options: 1) She could "try" to apply for a Returning Resident Visa (SB-1 visa) with no guarantee that the Consular officer would approve it, due to it's strictness or 2) Go through the whole immigration process all over again. The former would take about 2 months if approved, the ladder would take an additional year. Both methods being costly.

I don't mind paying the money for option 1, but it would be nice if I had some assurance. And I can't see going through Option 2 again because of the long wait, especially since I've gone through the nightmare before after I married my wife.

My family and I are devastated right now because we honestly did not know about this law that we had unknowingly violated because of my wife's overstay in Bolivia by just 8 DAYS. The law also states that government employees and military personnel do not apply to this rule. Since I'm neither, the US Embassy is basically no help to me and keeping me in the dark.

My questions are:

Is the SB-1 visa the way to go?

What are the chances of being approved?

Can a government official help in this case?

There are a couple reasons why my wife had to leave in the first place: (sick mother, wanted to have our son in her country of citizenship). I am a US citizen and I honestly did not know about this rule, I figured since the I-751 NOA gave her up until Sept. 2011, everything would be fine as long as she cam eback before that date. Any help would be greatly appreciated. Thank you.

[Harpa Timsah 13,258]

I think you have a good chance for the SB-1, because she did not intend to stay that long (child passport delays etc) and you have proof of that.

However, I looked at some laws and it seems to me that she should have been paroled so she can attend her ROC interview...

Here http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=8cfr

it says

"An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with § 235.11 of this chapter. "

And 235.11 states

© Expired conditional permanent resident status . The lawful permanent resident alien status of a conditional resident automatically terminates if the conditional basis of such status is not removed by the Service through approval of a Form I-751, Petition to Remove the Conditions on Residence or, in the case of an alien entrepreneur (as defined in section 216A(f)(1) of the Act), Form I-829, Petition by Entrepreneur to Remove Conditions. Therefore, an alien who is seeking admission as a returning resident subsequent to the second anniversary of the date on which conditional residence was obtained (except as provided in § 211.1(b)(1) of this chapter) and whose conditional basis of such residence has not been removed pursuant to section 216© or 216A© of the Act, whichever is applicable, shall be placed under removal proceedings. However, in a case where conditiona l residence was based on a marriage, removal proceedings may be terminated and the alien may be admitted as a returning resident if the required Form I-751 is filed jointly, or by the alien alone (if appropriate), and approved by the Service. In the case of an alien entrepreneur, removal proceedings may be terminated and the alien admitted as a returning resident if the required Form I-829 is filed by the alien entrepreneur and approved by the Service.

This seems to say, to me, that she should be readmitted as a returning resident. Either the 1-year rule trumps this or I am reading it wrong.

Did your wife sign anything at the airport? Couldn't she have had a trial of some sort and plead her case? Sorry I am not of more help. Good luck.

[Brother Hesekiel 2,236]

Is the SB-1 visa the way to go?

Yes, 100%.

[chemarc 0]

Yes, 100%.

Thanks for your help guys. I just don't like the fact that it is not a sure thing, and if she is denied the SB-1 Visa, we have to start the WHOLE process over again. I don't even want to think negatively but I'm not sure what the chances are of the approval. What are some good cases and documents to bring?

[chemarc 0]

So what are the chances of being approved for the SB-1?

[Little_My 464]

No one here can answer that - you seem to have some valid reasons for her staying in Bolivia over a year, but the process is in the hands of the consular office. One would think you have a good chance of getting it approved, so I would think it is your best bet. As for the documents, you can find all that on USCIS or travel.state.gov web sites. This is from travel.state.gov:

When applying for a Returning Resident (SB-1) immigrant visa, you should submit the following forms and documents to the U.S. Embassy or Consulate where you will apply:

* A completed Application to Determine Returning Resident Status, Form DS-117

* Your Permanent Resident Card, Form -551

* Your Re-entry Permit, if available

You must also submit supporting documents that show the following:

* Dates of travel outside of the U.S. (Examples: airline tickets, passport stamps, etc.)

* Proof of your ties to the U.S. and your intention to return (Examples: tax returns, and evidence of economic, family, and social ties to the U.S.)

* Proof that your protracted stay outside of the U.S. was for reasons beyond your control (Examples: medical incapacitation, employment with a U.S. company, accompanying a U.S. citizen spouse, etc.)

A Consular Officer will review your application and supporting documents to determine whether you meet the criteria for Returning Resident (SB-1) status. If you do, you must be eligible for the immigrant visa in all other respects in order to be issued a Returning Resident (SB-1) immigrant visa.