Returning Resident Visa (SB-1) Questions

[svirac 0]

Hi all!

 

I have a question about the Returning Resident Visa and how to best proceed.

 

I'm a US Citizen, and my wife is a US Permanent Resident with a Green Card valid through 2020.

 

In 2012, we moved to Ontario, Canada for a temporary work assignment for my job.  We always intended to return to the US after the assignment was complete.  The assignment became much more long-term than anticipated, requiring us to stay in Canada longer than anticipated.  During which time, my wife became pregnant again, and I ended up losing the job that would have brought me back to the US.

 

Due to the pregnancy as well as being unable to find suitable employment in a short time frame back in the US, I ended up taking another job in Ontario.

 

Long story short, I have finally located an employment opportunity back in the US and we are planning to relocate back to the US as planned, albeit much longer than we anticipated originally.

 

My wife, kids, and I have never been outside the US for any longer than 5 months maximum - so we've never had an actual duration of stay outside the US longer than 6 months, although we did relocate our permanent address to Canada.  We did maintain some financial investments in the US, as well as credit cards (even our Amazon Prime US membership is still active to this day).  We also traveled to the US frequently (hence the fact we were never gone more than a couple months at a time) to visit friends and family.

 

Based on the above, I have a few questions:

1. Since we were never technically outside the US for any period longer than 6 months, does my wife even need to apply for a Returning Resident Visa (SB-1)?
2. If a Returning Resident Visa is required, based on the information above, is my wife eligible for the SB-1 Visa?
3. If my wife is not eligible for a returning resident visa, do we have to redo the process with I-130?  If so, do we have to first submit an I-407?

 

Thank you very much for your help and advice!

[Crazy Cat 41,878]

It seems to me she was living in Canada.  She was not living in the US.  Was living in Canada since 2012 due to circumstances beyond her control?   

[svirac 0]

Fair question.  But she doesn't work, and my job was in Canada, so, hard to live somewhere without a job or money to pay for things.  So, I could certainly reason that it was beyond her control.  I'm certain someone could reason otherwise though.

[Crazy Cat 41,878]

1 minute ago, svirac said:

Fair question.  But she doesn't work, and my job was in Canada, so, hard to live somewhere without a job or money to pay for things.  So, I could certainly reason that it was beyond her control.  I'm certain someone could reason otherwise though.

Some could reason that after you lost your job, you could have moved back to the US...........but I am not an expert in this area....just speculating........I hope your family can relocate back to the US with a minimum of hassle......good luck.

[Roel 7,192]

4 minutes ago, svirac said:

Fair question.  But she doesn't work, and my job was in Canada, so, hard to live somewhere without a job or money to pay for things.  So, I could certainly reason that it was beyond her control

Yeaaaaaaaah that's a far stretch there.

[svirac 0]

Is it a far stretch?  I don't know - I suppose that's why I'm asking.  Trying to figure out what is possible and what's not and what our path forward is.

 

It seems the consensus is that she is not eligible for an SB-1 visa?

Does the fact that we were never technically absent for more than 6 months have any bearing?

 

Lastly, assuming that there is no bearing and she is not eligible, what would the next steps be - I-130?  Or does there need to be an I-407 first?

[Crazy Cat 41,878]

2 minutes ago, svirac said:

Does the fact that we were never technically absent for more than 6 months have any bearing?

Visiting the US every few months does not equal  having primary residence in the US.

Edited May 23, 2019 by missileman

[payxibka 10,045]

Were you just stepping into the USA for short periods of time in order to not have a long break?

[Umka36 781]

OP please clarify a few things. Your wife still has her GC right? If so, has she been using that when going back and forth between the two countries? I guess she could just try to get back into the US" permanently" with the GC and hope CBP doesn't grill her (as it's up to them whether they let her in or not).

 

I'm trying to figure out if she needs to file the SB-1 visa in the first place. I agree with other in regards to the reason if you need to file the SB-1 as a stretch beyond one's control. It's been almost 7 years.

[svirac 0]

16 minutes ago, payxibka said:

Were you just stepping into the USA for short periods of time in order to not have a long break?

No - it was always to visit with friends and family.

[payxibka 10,045]

2 minutes ago, svirac said:

No - it was always to visit with friends and family.

But a fairly quick in and back,  nonetheless 

[svirac 0]

1 minute ago, payxibka said:

But a fairly quick in and back,  nonetheless 

Correct.  Never more than a week.

10 minutes ago, Umka36 said:

OP please clarify a few things. Your wife still has her GC right? If so, has she been using that when going back and forth between the two countries? I guess she could just try to get back into the US" permanently" with the GC and hope CBP doesn't grill her (as it's up to them whether they let her in or not).

 

I'm trying to figure out if she needs to file the SB-1 visa in the first place. I agree with other in regards to the reason if you need to file the SB-1 as a stretch beyond one's control. It's been almost 7 years.

Yes, she still has her GC.  She's been using NEXUS primarily when going back and forth, but her GC is linked to the NEXUS.

 

I did call CBP and they said similar to you that it's up to the CBP officer, but that he could refer her to immigration court for review for removal.  They actually advised me to not pursue the SB-1, but also not to pursue a I-407/I-130 route, but to basically just show up with the GC.  Although, the "immigration court" does not sound like a positive outcome...  That's really why I'm asking my question.  I want to do the right thing, definitely don't want to get into trouble with immigration.  Just unclear as to what the best path actually is...

[payxibka 10,045]

5 minutes ago, svirac said:

Correct.  Never more than a week.

.

The reasons aren't important as much as the behavior.  What you were doing is simply stepping in.  Unfortunately,  as you are finding out its not going to be any help 

[NikLR 13,227]

Did she use health care in Canada to give birth? Or did you pay with outside insurance? 

[svirac 0]

Just now, NikLR said:

Did she use health care in Canada to give birth? Or did you pay with outside insurance? 

Health care in Canada.  She's a Canadian citizen.