SB1 Visa - need your input please

[geowrian 22,337]

1 hour ago, Barry Krebs said:

You have to be out of the US for over two years in order to qualify for the returning resident visa

No such requirement exists.

 

The physical green cards should be expired if they left the US 10 years ago, so no way to return to the US via those, and an LPR can not obtain a US visa...so they would have to have been deemed to have abandoned LPR status before they could get a visa to travel to the US. Normally an LPR would apply for a boarding foil, or they do the SB-1 visa (where the above rule does not apply).

 

one of the requirements for an SB-1 is that you must be eligible to be petitioned still. Unless they have a USC or LPR relative able to petition for them, SB-1 is likely not happening.

 

@Nitas_man correct?

[JOSELINE 0]

Sure Mark..I will do that. thank you

[Going through 5,671]

1 hour ago, Mark88 said:

Ony thing you should start collecting (if there is) any correspondance between you and your aunt, saying that you would like to come to the US and live with her, and she would be happy to take you both in. If there is no such email, now before you turn 18 might be good time to write her....

An aunt wouldn't be a qualifying relative, so doubt a letter saying she would take them in would do much good.

[JOSELINE 0]

Sure..As you suggested, I will send an email to my aunt soon and get her support to live with her

[Nitas_man 3,100]

On 7/30/2018 at 3:16 AM, JOSELINE said:

My sister(age 10 at the time of return) and I(age 12) had the status of Green Card at the time of departure(2008). We departed from the US with two year re-entry permit with the intention to return back.

My parents have applied for re-entry permit and they did not get it when we depart(Reason why they did not get it is that they had not completed biometric as due to technical glitches in the system on the scheduled date)

My parents did not allow us to return to US even though we wanted to return and willing to stay with my mother in law who is a US citizen.

I found out about SB1 visa recently and would like to apply for SB1 Visa. Do you think our case is valid and have a chance to get SB1 visa? Your thoughts please

The primary qualification for SB-1 is that you have to qualify for immigration benefit in every other way.  Example:  returning resident still married to USC could re-file and receive an immigrant visa on a stand-alone basis, etc.

IF:  You had nothing today, and wished to immigrate to the US, on what basis would you immigrate?  It seems you immigrated originally with your parents?  Your parents no longer live in the US?  

The second hurdle to overcome is proof that you never abandoned US residency and maintained ongoing ties to the US.  Based on what you are saying, I really dont think you have even a slight chance.  Your aunt cannot petition for you.

An SB1 is a very expedited immigrant visa but the immigrant is treated essentially like a new immigrant.

I blogged our case under “working and travelling” and it was I, the USC, who was mostly grilled not my wife who just accompanied me while I was working.  That was 18 months after the travel document expired but holding a green card valid until 2022.  

Edited August 1, 2018 by Nitas_man

[Nitas_man 3,100]

On 7/30/2018 at 3:56 AM, NuestraUnion said:

So you and your sister received the SB1 but your parents didn't before they left the US?

 

The issue I see here is that 10 years is well past the 2 year time to be out of the US. Like I said before, you may lost your permanent residency status. If it is deemed you have abandoned your permanent status, then an SB1 won't help. I understand that this was out of your control because you were a minor, but your parents would have had the responsibility to maintain status.

 

You will likely need to find another path to the US.

 

A travel document is permission to be out for two years.  An SB-1 is permission to return after expiratiom of the travel document.  You are not providing accurate information here.

[Nitas_man 3,100]

On 7/30/2018 at 6:53 AM, JOSELINE said:

Got it sir. Just to curious to check. I could not return to US as my father did not get the re-entry permit & he was not willing to send us back to US as we were minor.. I recently came to know about the SB1 Visa(I joined college this year and in our college, we have a program where a student can study 2 years in India and one year in US(Concordia College New York ) to get a degree). I was interested to join the program. During the discussion, the university officials talked about the SB1 visa. Then I googled and found more about this visa.

 

Do you think the visa officer consider this reason to approve the visa?

 

Thanks

Joseline

No

[Nitas_man 3,100]

On 7/30/2018 at 10:27 PM, JOSELINE said:

I am not working  just joined college this year and have not filed taxes. I will apply for SB1 visa and let me try my luck! thank you

Not filing taxes will rule you out immediately.  See above about maintaining ties.

[Going through 5,671]

3 minutes ago, Nitas_man said:

Not filing taxes will rule you out immediately.  See above about maintaining ties.

It won't---according to the OP, she is not even 18 years old yet.

Edited August 1, 2018 by Going through

[Nitas_man 3,100]

2 minutes ago, Going through said:

It might not---according to the OP, she is not even 18 years old yet.

An SB1 applicant requires a primary US sponsor based on immigration path category.  Example spouse or parent.  They required me to re-fill an affidavit for my wife for the interview.  Had I not met the requirements I would still have to fill out the affidavit as sponsor then get a co-sponsor.  Do you see that happening here?  I do not.  OP can try - its just a fee after all but I am applying the rules that applied to us last year and this one looks DOA.

[Going through 5,671]

6 minutes ago, Nitas_man said:

An SB1 applicant requires a primary US sponsor based on immigration path category.  Example spouse or parent.  They required me to re-fill an affidavit for my wife for the interview.  Had I not met the requirements I would still have to fill out the affidavit as sponsor then get a co-sponsor.  Do you see that happening here?  I do not.  OP can try - its just a fee after all but I am applying the rules that applied to us last year and this one looks DOA.

Oh I agree she has a slim chance of being approved, as I've mentioned earlier in this thread----and I did mention earlier to the OP that her aunt is not a qualifying relative for the purposes of an SB-1.

 

My response was to your earlier statement that "not filing taxes will rule you out immediately", as the OP was a minor when she left, and is still a minor.

Edited August 1, 2018 by Going through

[Nitas_man 3,100]

19 minutes ago, Going through said:

Oh I agree she has a slim chance of being approved, as I've mentioned earlier in this thread----and I did mention earlier to the OP that her aunt is not a qualifying relative for the purposes of an SB-1.

 

My response was to your earlier statement that "not filing taxes will rule you out immediately", as the OP was a minor when she left, and is still a minor.

You did and you were correct.  Tax returns are the first thing they check however as they are seen as primary proof of maintaining ties and intent to return.

Case law:  Matter of Zimora (random reference to it)

http://myattorneyusa.com/case-law-on-the-abandonment-of-permanent-resident-status

Abandonment of status of parents is imputed to children.

A minor would be on their parents taxes had the parents intended to maintain status.

If the parents abandoned status and the OP does not have a stand-alone immigration path this case is DOA in a US courtroom.  An interview window is harder.

The DS-117 only costs about 200 bucks and involves one interview.  The OP can try but I don’t even see a gray area here.

Edited August 1, 2018 by Nitas_man

[JOSELINE 0]

Thank you all for providing more and more details. I appreciate your help..I will  see whether I can file taxes next month with the help of my aunt before scheduling the interview

[Barry Krebs 13]

I think you should have a US immigration attorney thoroughly analyze your situation.  I did provide links on this subject as guidance only.

 

They basically quote what I was saying.  If you are by perchance given a SB-1 Visa and it is noted in your passport, you have to update your cards and wait the necessary five years before applying for US citizenship (this should have been done in the first place).  Note:  With US citizenship, you can stay out as long as you want but you would have to continuously file US income tax returns.  If you worked only lower wage jobs and you have a low net worth in the US, this is not a problem.  That all being said, do not be surprised if you have to go through the process again.  There maybe options to get another green card for you-again only a qualified US immigration attorney can offer you that advice.  One other caveat:  Until you get another green card or SB-1 visa, you are still officially a non-immigrant and CBP does not have to let you back in the country (and they don't need a reason).  Finally: If an immigration attorney recommends you formally abandon your green card, here is the link:  https://www.uscis.gov/i-407.  It may help should you wish to visit the US as visitor but prepared for the question on why you waited so long to formally abandon your green card.  The immigration attorney should be able to help you with that.  Hope that does not happen and you can save your green card and in essence be able to come back.

 

Edited August 5, 2018 by Barry Krebs

[JOSELINE 0]

Thank you Barry. As you suggested, we will consult with  an US immigration attorney to discuss our situation.