Please advices - complicated situation

[JimVaPhuong 4,863]

Nobody here doubts your Mom will get approved for another Greencard...

Your real problem is that a New Greencard will not resurrect the petition for your brother as it was automatically revoked when the petitioner lost their LPR Status.

Think of it like Car Insurance, if you let it lapse sure you can get it reinstated (even with the same policy number) but if there was an accident during the lapse then you aren't covered.

On a side note the only reason other posters have mentioned "if" your mother's Visa gets denied is because there is nobody who can tell you 100% it will get approved.

Finally, regarding the your Mom's Status: It sounds like her situation is exactly the reason USCIS has the SB-1 (Returning Resident Visa) how long ago did she lose her Status? If she can demonstrate that the cause of her remaining out of country was unexpected then she would have a shot at it. If that's possible then I would ask a lawyer if obtaining a SB-1 would erase the lapse in her residency (I doubt it).

A returning resident visa is processed at the consulate just like an immigrant visa - medical exam, DS-230, the whole nine yards. The only difference is that there is no petition. Instead, the alien has to prove that they were a permanent resident when they left the US, that the absence was intended to be temporary, and that the reason they were abroad for so long was unexpected and beyond their control. If approved, a returning resident can resume their permanent resident status upon entering the US, but the SB-1 doesn't restore any gaps in their resident status. The FB2 petition would still be dead.

[lipslikesugar 0]

A returning resident visa is processed at the consulate just like an immigrant visa - medical exam, DS-230, the whole nine yards. The only difference is that there is no petition. Instead, the alien has to prove that they were a permanent resident when they left the US, that the absence was intended to be temporary, and that the reason they were abroad for so long was unexpected and beyond their control. If approved, a returning resident can resume their permanent resident status upon entering the US, but the SB-1 doesn't restore any gaps in their resident status. The FB2 petition would still be dead.

I chose not to apply for the SB-1 visa because I got an email from the consulate stating my mom WASN'T eligible for it. I really appreciated their input and I understood they would most likely deny it if I apply for it.Mom lost her GC last year ( a couple of months before my brother's interview).

thank you

Edited December 12, 2011 by lipslikesugar

[Deputy Purple 1,294]

A returning resident visa is processed at the consulate just like an immigrant visa - medical exam, DS-230, the whole nine yards. The only difference is that there is no petition. Instead, the alien has to prove that they were a permanent resident when they left the US, that the absence was intended to be temporary, and that the reason they were abroad for so long was unexpected and beyond their control. If approved, a returning resident can resume their permanent resident status upon entering the US, but the SB-1 doesn't restore any gaps in their resident status. The FB2 petition would still be dead.

But it would have eliminated the wait for the new I-130 for the Mother so that was probably the route that should have been taken (and maybe still could be taken)?

Why did the consulate say she's not eligible for the SB-1? How long ago did she abandon/lose her LRP status?

Edited December 12, 2011 by Bob 4 Anna

[lipslikesugar 0]

But it would have eliminated the wait for the new I-130 for the Mother so that was probably the route that should have been taken (and maybe still could be taken)?

Why did the consulate say she's not eligible for the SB-1? How long ago did she abandon/lose her LRP status?

I don't know why... when I explained my situation they just said that she wasn't eligible. I asked why and they said if I needed more information I needed to contact uscis... It would save me about 5 months.... so not that much. .. I could apply but I can't prove that my brother didn't have anybody else to care for him. (how do you prove that?).

[JimVaPhuong 4,863]

I don't know why... when I explained my situation they just said that she wasn't eligible. I asked why and they said if I needed more information I needed to contact uscis... It would save me about 5 months.... so not that much. .. I could apply but I can't prove that my brother didn't have anybody else to care for him. (how do you prove that?).

You probably couldn't prove it, and they probably wouldn't buy it even if you could. It might be different if your brother had died. They would understand that a mother wouldn't leave her dying son. However, they look at the situation to determine if the alien could have taken reasonable steps to preserve their resident status. Your mother probably could have returned to the US for a few weeks to file an I-131 for a reentry permit, and then returned to Brazil. The situation was not entirely out of her control.