DCF or SB1 - Need some clarity

[ImminentImmigrant 1]

Long post, so I'm including a tldr; (too long, didn't read:) version.

tdlr; Out of USA for over a year, wondering is SB1 or DCF is the better route. 

 

I'm an Indian citizen and a husband of a US Citizen by birth. Here's a Brief Timeline:

2012 Married

2013 Started CR-1 Process

2014 Obtained CR-1 moved to USA

2015 Stayed in USA

2016 Left USA for India, without taking any advanced parole. Also, Adjusted CR-1 to IR-1. Got new card in December.

 

It has been 13 months since I was last in USA. However, 9 months back my CR-1 was adjusted to an IR-1 and I got a fresh Green Card. Any chance my "counter" of time outside USA got reset on me getting a fresh Green Card in the mail?

 

Realistically, I know it can be seen as I have abandoned my Green Card. We want to return to USA permanently in the next few months and are looking at the best way to do so.

These are my options from what I can tell.

1) Play dumb and show up in USA. Try convincing the CBP that I was unaware etc and appear before an immigration judge. This doesn't seem very smart.

 

2) Apply for an SB-1 Returning Visa. Things going in my favor: My wife is with me in India and working here. We have not stopped filing taxes. Have valid Driver's License, registered for Selective Services. I am looking for jobs in USA so can show that. Lastly, I have an elderly grandmother who I'm staying with, who has a terminal disease. I could try to show we were in India to look after her. However, I have other family members with me here so don't know if that will hold up.

SB-1 Rejection rates seem quite high so I'm wondering if its worth the time, money and effort. I don't want to delay getting back to USA.

 

3) Abandon my Green Card and file DCF for a new IR-1 Visa. My wife is in India since over six months and isn't on a tourist visa. My father in law is willing to be a joint sponsor for the i864. This seems like the most fool proof way ahead.

 

I had a few questions:

a) If an SB-1 is granted, can I continue the process of Naturalization, or will that be reset to year zero?

b) Will my Alien Number change if granted an SB-1 to reenter? I am applying to jobs and want to say I am eligible to work in USA.

c) If I fill the i407 and abandon my green card, can I immediately reapply with DCF or is there a cooling off period? Can my i407 be held against me?

d) Visa Fees can be expensive. Assuming SB1 and DCF-IR-1 are both options, which would be cheaper for me?

 

Sorry for the extremely long post. Hoping y'all can help me clarify these doubts. Thanks!

Edited September 1, 2017 by Quite Confused
typo

[Boiler 45,795]

I would go for 1 personally, but how have you been maintaining the US as you permanent residency?

[ImminentImmigrant 1]

8 minutes ago, Boiler said:

I would go for 1 personally, but how have you been maintaining the US as you permanent residency?

1. Filed taxes every year since obtaining PR

2. Maintain ties with university alumni, friends and family in USA

3. Paying monthly mobile phone bill (number is still active)

4. Active Driving License, Selective Service Registration

 

 

Weak points

1. Not paying rent, medical or any other insurance.

2. Not employed in USA

 

If I had a more solid case, I would consider 1. But it seems like quite a risk. If they reject me, will be quite a setback.

[Boiler 45,795]

What do you mean by they?

[ImminentImmigrant 1]

Just now, Boiler said:

What do you mean by they?

The official at the Point of Entry who asks me why I was outside USA for over a year, and possibly the immigration judge I'm referred to.

[Boiler 45,795]

All the PoE can do is refer you to an IJ, taking an extreme situation and say that happened and the IJ says you abandoned your status what would you do then?

Edited September 1, 2017 by Boiler

[ImminentImmigrant 1]

3 minutes ago, Boiler said:

All the PoE can do is refer you to an IJ, taking an extreme situation and say that happened and the IJ says you abandoned your status what would you do then?

If the IJ rules I abandoned status, it seems like removal proceedings will start against me. I would very much like to avoid that so am contemplating options 2 & 3.

[Boiler 45,795]

Would your wife not want to file to adjust your status?

[ImminentImmigrant 1]

Just now, Boiler said:

Would your wife not want to file to adjust your status?

She most definitely would. If I go for DCF/i-130 right now, she would be the petitioner and I would be the beneficiary.

I am hoping to have a job offer on reaching USA, and am afraid removal proceedings will jeopardize that. 

Are you saying that if I enter USA and am referred to an IJ, my wife can *then* file for AoS for me? 

[Boiler 45,795]

Of course, and I am sure the IJ etc know that, so what is the point?

[ImminentImmigrant 1]

11 minutes ago, Boiler said:

Of course, and I am sure the IJ etc know that, so what is the point?

Firstly, thanks for taking the time to answer my questions!

 

My knowledge of immigration proceedings seems flawed. I was under the impression you needed to have a different type of work visa already to file for AoS (like H1B / i485). I only have an IR-1, which I thought could be seen as abandoned since I am outside the country for over a year. 

Also, I read that I may be denied entry to my flight to USA since I have been outside for over a year. Hence was iffy about this route.

 

 

[Boiler 45,795]

17 minutes ago, Quite Confused said:

Firstly, thanks for taking the time to answer my questions!

 

My knowledge of immigration proceedings seems flawed. I was under the impression you needed to have a different type of work visa already to file for AoS (like H1B / i485). I only have an IR-1, which I thought could be seen as abandoned since I am outside the country for over a year. 

Also, I read that I may be denied entry to my flight to USA since I have been outside for over a year. Hence was iffy about this route.

 

H is probably a small minority of adjustment cases.

 

Who would deny you, you have a GC.

[jan22 3,056]

An SB-1 is not appropriate in your situation. To qualify for the SB-1 visa, you have to show that you remained outside the United States for more than a year for a reason that was beyond your control.  According to the little you said here, you chose to stay in India, i.e. , there was nothing that prevented your return, such as being hospitalized, etc.

 

 

Edited September 3, 2017 by jan22

[ImminentImmigrant 1]

35 minutes ago, jan22 said:

An SB-1 is not appropriate in your situation. To qualify for the SB-1 visa, you have to show that you remained outside the United States for more than a year for a reason that was y.your control.  According to the little you said here, you chose to stay in India, i.e. , there was nothing that prevented your return, such as being hospitalized, etc.

 

 

Thanks for the reply. Yep, my SB-1 case is shaky. Can show I have a grandparent I was looking after, but have other family members here too. 

Am looking into the feasibility of what the above member "Boiler" suggested, ie: entering USA on my existing GC and then adjusting my status.

[jan22 3,056]

A sick grandmother--whether or not there are other family members there or not--- will not qualify in furnace B-1 Visa.

 

If you are actually admitted into the US with your current green card, there would be no need to/reason to/way to adjust status. If you are admitted, the officer at the Port of Entry is saying that you did not lose your LPR status.  Boiler was talking about a case where you would be refused admittance but are paroled into the US for an immigration hearing.