Returning Resident Visa (SB-1) Questions

[NikLR 13,227]

2 minutes ago, svirac said:

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

Provincial health care is only for residents of Canada regardless of citizenship.  You lose it when you become a US resident.  Suggest applyong for new green card.  A very snall few have had success with DCF through Mexico so you can try that route. 

[Crazy Cat 41,845]

14 minutes ago, svirac said:

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

My understanding is that US residents can not use Canadian health care.......agree with @NikLR

Edited May 23, 2019 by missileman

[svirac 0]

1 minute ago, missileman said:

My understanding is that US residents can not use Canadian health care.......agree with @NikLR

Dunno.  I had no problem getting OHIP with my temporary work permit, and my wife never let her health care card expire after we moved.  We never had to prove residency or whatever.  Maybe the address.

But let's be clear, we did move our address.  That is reflected on our US tax returns for our time here.  We continued to file US taxes, but did so from our Canadian address.

[NikLR 13,227]

To be clear your wife was no longer eligible for OHIP when ahe immigrated to the USA. Because she didn't inform OHIP that she was no longer a resident they didnt ask.  You didnt have an issue because your work visa allowed you to obtain OHIP.  You also both had an Ontario address.  

Honestly I dont see an SB1 suceeding in  your case and not sure it's worth wasting your time and money. 

[Villanelle 4,122]

Does your wife ever plan on getting US citizenship? If she does she will probably have to wait a good 5 yrs from when you re-establish yourself in the US. See the problem you have is 10yr greencards are not automatically voided or surrendered when one leaves the US. To keep things simple- basically once you have a 10yr GC you can either surrender it when you leave OR have CBP stop you trying to enter with it and refer you to court who will then review what went on and either let you keep it or take it from you. Even failing to renew it at the 10yr mark does not make your status disappear. Its a weird system.... So keeping that in mind your options are:

 

1. She tries to enter with the GC. It seems shes been let in many times since 2010 so I dont really see any reason why CBP would stop you this time. Unless you are traveling with a whole bunch of stuff like you are moving or are otherwise acting suspicious. Once she is back in the US she should not apply for citizenship until at least 5yrs-- check out the requirements. No one should question how much she was out of the country when she renews the card in 2020. They may question it when she applies for naturalization however it only goes back 5 yrs. Taking this path means you may have to 'keep looking over your shoulder' every time you travel. Because each time she goes to CBP with the card she has theres a chance they see her travel history and try to deny her entry. Some CBP officers are aggressive and will make it seem like you cant get in, but technically they have to allow her in to see a judge. CBP cant make the determination she has been out of the country too long, they can only refer her to court. Typically people are given a court NOA and let go but in some cases they can send you to a detention center to wait your court date. The fact she used Canadian healthcare- which as others have said is only for Canadians residing in Canada- means she gave up her GC status to USCIS. So if she goes to court most likely they will strip her status. 

 

2. She can surrender her GC at the Embassy in Canada and you reapply for the CR or rather IR visa. This will take about a year. She can still travel as a Canadian to the US and should be let in for the standard amount Canadians get but theres no guarantee they will let her in every time. 

 

So you can try to hold on to the status she currently has- however if it is ever challenged she will be stripped of it. The safest thing to do is to surrender the GC and reapply. (NO CHANCE of getting SB1 here, its been too long and she used Canadian healthcare system which means she considered herself a resident in Canada). 

[carmel34 3,626]

Even though it will take a year, your best bet is to just file another I-130 for her.  Cheaper and less stress than all the uncertainty surrounding immigration court judges, attorney fees, being refused entry at POE, constant worry of possible deportation, etc.  She lost her LPR status by living in Canada for 7 years.  An immigrant visa is for living in the US, not in another country.

Edited May 23, 2019 by carmel34

[JFH 12,190]

8 hours ago, svirac said:

 

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

 

How is that different from someone who visits frequently? Before I got my IR-1 I visited my husband every 6-8 weeks. So “technically” I was never out of the country for more than 8 weeks, a lot more frequent than your 5-6 months. And my stats were also never more than a week. Would you say that made me a resident? Of course not. 

[svirac 0]

4 hours ago, Villanelle said:

Does your wife ever plan on getting US citizenship? If she does she will probably have to wait a good 5 yrs from when you re-establish yourself in the US. See the problem you have is 10yr greencards are not automatically voided or surrendered when one leaves the US. To keep things simple- basically once you have a 10yr GC you can either surrender it when you leave OR have CBP stop you trying to enter with it and refer you to court who will then review what went on and either let you keep it or take it from you. Even failing to renew it at the 10yr mark does not make your status disappear. Its a weird system.... So keeping that in mind your options are:

 

1. She tries to enter with the GC. It seems shes been let in many times since 2010 so I dont really see any reason why CBP would stop you this time. Unless you are traveling with a whole bunch of stuff like you are moving or are otherwise acting suspicious. Once she is back in the US she should not apply for citizenship until at least 5yrs-- check out the requirements. No one should question how much she was out of the country when she renews the card in 2020. They may question it when she applies for naturalization however it only goes back 5 yrs. Taking this path means you may have to 'keep looking over your shoulder' every time you travel. Because each time she goes to CBP with the card she has theres a chance they see her travel history and try to deny her entry. Some CBP officers are aggressive and will make it seem like you cant get in, but technically they have to allow her in to see a judge. CBP cant make the determination she has been out of the country too long, they can only refer her to court. Typically people are given a court NOA and let go but in some cases they can send you to a detention center to wait your court date. The fact she used Canadian healthcare- which as others have said is only for Canadians residing in Canada- means she gave up her GC status to USCIS. So if she goes to court most likely they will strip her status. 

 

2. She can surrender her GC at the Embassy in Canada and you reapply for the CR or rather IR visa. This will take about a year. She can still travel as a Canadian to the US and should be let in for the standard amount Canadians get but theres no guarantee they will let her in every time. 

 

So you can try to hold on to the status she currently has- however if it is ever challenged she will be stripped of it. The safest thing to do is to surrender the GC and reapply. (NO CHANCE of getting SB1 here, its been too long and she used Canadian healthcare system which means she considered herself a resident in Canada). 

Thank you this was a very helpful response!!

4 hours ago, carmel34 said:

Even though it will take a year, your best bet is to just file another I-130 for her.  Cheaper and less stress than all the uncertainty surrounding immigration court judges, attorney fees, being refused entry at POE, constant worry of possible deportation, etc.  She lost her LPR status by living in Canada for 7 years.  An immigrant visa is for living in the US, not in another country.

Thanks much for your insight!

[svirac 0]

23 minutes ago, JFH said:

How is that different from someone who visits frequently? Before I got my IR-1 I visited my husband every 6-8 weeks. So “technically” I was never out of the country for more than 8 weeks, a lot more frequent than your 5-6 months. And my stats were also never more than a week. Would you say that made me a resident? Of course not. 

I’m not sure how it’s different. On the SB-1 application it asks to list all absences of 6 months or more. So technically she has none. Unless I’m interpreting it wrong. It made me think the 6 month thing was significant.

 

As an aside, why are so many people on here so combative in their responses? Is this a sensitive topic? Did I not ask my questions politely enough? I didn’t think this was the spirit of the forum.

 

many thanks to those of you who have provided helpful responses and info. It is greatly appreciated!

[NigeriaorBust 4,087]

  When you filed your US taxes did you file as a resident or non resident ?    On this page about mid page there is a paragraph about international travel that may help you see that we are not the only ones that see your frequent visits as not meeting residency requirements https://www.***removed***/greencard/retain-greencard.html

[mushroomspore 3,044]

50 minutes ago, svirac said:

I’m not sure how it’s different. On the SB-1 application it asks to list all absences of 6 months or more. So technically she has none. Unless I’m interpreting it wrong. It made me think the 6 month thing was significant.

 

As an aside, why are so many people on here so combative in their responses? Is this a sensitive topic? Did I not ask my questions politely enough? I didn’t think this was the spirit of the forum.

 

many thanks to those of you who have provided helpful responses and info. It is greatly appreciated!

Well, the harsh truth is that your wife unfortunately did the opposite thing that American permanent residency is intended for. It rubs people the wrong way here as many of us have to go through immense obstacles and hurdles to be granted the privilege of being able to live in the US permanently. And this is not something where one can just do the bare minimum (like coming back every 5 months for one week into the country you are technically supposed to be living in permanently). Your wife could technically have stayed and worked in the US while you went to Canada. It just seems like you guys haven't taken the US immigration process very seriously.

Edited May 24, 2019 by mushroomspore

[Boiler 45,486]

Why is there an issue now when you have been going back and fore.

[Just Observing 34]

4 hours ago, svirac said:

As an aside, why are so many people on here so combative in their responses? Is this a sensitive topic? Did I not ask my questions politely enough? I didn’t think this was the spirit of the forum.

Just ignore such people with self righteousness complex.

[Cathi 5,748]

19 hours ago, svirac said:

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

So she was using her green card as a visitor visa. A big no no.

[WeGuyGal 1,052]

2 hours ago, Cathi said:

So she was using her green card as a visitor visa. A big no no.

Yep, that's what it comes across as

 

Using Canadian CHIP after gaining US permanent residency was a bog no no too