SB-1 vs I-193

[kar-pa-gam 0]

I am reaching out to get help/advise on the option with a more predictable outcome to return back to the United States. You will find a brief summary below. Any personal experience from a similar situation will help us with our next steps. 

Summary:

Me and wife: Lawful permanent residents. All our financial assets continue to be in the US and we have continued paying taxes while we were abroad.

Greencard validity: Oct'14 - Oct'24

Reentry permit validity: Oct'17 - Oct'19

Elder Daughter: US citizen - DOB: Oct'16

Younger Daughter: Indian citizen - DOB: Jul'19

Background: We came to India in Oct'17 to help the family out through some personal issues. Applied for a reentry permit before leaving the US. Our initial plan was to return in Sep'19.

- While we were in India, our second daughter was born. We wanted to return back to the US for the delivery. However, my wife had a pregnancy related hemorrhage and we were advised against travel. Since we were within the reentry permit validity, we decided to stay back.  

- Unfortunately, the trip got extended as my mother was diagnosed with Stage 3 Ovarian cancer in Jun'19. We decided to stay back to take care of her.- Finally, the trip again got extended due to COVID. We did not want to travel with an infant during that time period. 

We are now trying to figure out the best way to get back. We have been presented with a couple of options - SB-1 visa and I-193 visa waiver. We are looking to get legal help and determine if these are indeed the only two options we have and to figure out the best way to return back to our lives in the US. 

[Dashinka 24,509]

Reading the I 193, I don't think that would apply in your case as it seems this is more related to re-entering the US without a passport.  I assume you and your wife will actually have your passports.  I would focus on the SB-1 as it seems you might have a good case for not returning within the period of your re-entry permit with the complications from the delivery of your second daughter.

 

Good Luck!

Edited February 5, 2021 by Dashinka

[designguy 1,179]

SB1 visas are for situations where you were not able to return due to circumstances out of your control. Based on your timeline it seems like your daughter was born 2 years ago? So this would have given you plenty of time to apply for an SB1 after your wife was better and to travel back to the US. Staying in India to care for your mother would not qualify as a circumstance where you could not return. 

[Dashinka 24,509]

1 hour ago, designguy said:

SB1 visas are for situations where you were not able to return due to circumstances out of your control. Based on your timeline it seems like your daughter was born 2 years ago? So this would have given you plenty of time to apply for an SB1 after your wife was better and to travel back to the US. Staying in India to care for your mother would not qualify as a circumstance where you could not return. 

I think that only applies for the re-entry permit period.  I don't think LPRs are required to immediately apply for an SB-1 if their re-entry permit expires, but rather they can apply when they are ready to come back.  I would think the fact that the baby was born just a few months before the expiration of the re-entry permit, but was advised by a Dr. not to travel therefore exceeding the validity of the re-entry permit may count as circumstances under your control.  The fact that the stayed another year plus may or may not be material to getting an SB-1, but they do seem to meet all the other requirements.  

[Boiler 45,525]

The normal advice would be to head on back and try your luck, but that would mean leaving younger child behind.

[bmqsg5h3 12]

Their younger daughter born in India has never been a LPR. Does she qualify for SB-1? I wonder if she can get a derivative visa when her parents are granted SB-1, or they need to file I-130 (F2A) for her.

[aaron2020 11,651]

17 minutes ago, bmqsg5h3 said:

Their younger daughter born in India has never been a LPR. Does she qualify for SB-1? I wonder if she can get a derivative visa when her parents are granted SB-1, or they need to file I-130 (F2A) for her.

Generally, a child born to an LPR abroad can travel to the US.  https://jp.usembassy.gov/visas/immigrant-visas/green-card/lpr-child-abroad/

The problem here is that OP has stayed outside the US beyond the expiration of their Re-Entry permits.   Since mom can't travel, neither can the child.  They can try to address this at their SB-1 interviews.  

[kar-pa-gam 0]

Thanks everyone for taking the time and for writing back. 

 

1. The first time, we could not travel due to pregnancy issues. However, that was during the validity of the re-entry permit. So, maybe that is just a moot point anyway. 

2. When my mother was diagnosed with cancer 4 months before the expiration of the reentry permit, I did reach out to USCIS to understand my options. They said - go to US and apply for new Reentry permit OR apply for SB-1 when you are ready. I took it at face value and did not research about SB-1 in detail then. I thought I had an option to get back and I was happy with that. 

3. Once the cancer diagnosis was done, we were in no position to return as I had to stay back, figure out the best treatment options and take care of my mother. 

 

The problem as you guys have mentioned is to prove legally that circumstances were "beyond your control". Legal advise on SB-1 so far has been - 1. technically you could have travelled back for a short period and returned back to India. 2. Not being able to travel to take care of mother is an inconvenience but not something that was preventing you from travel. My argument to this has been - yes, we could have travelled. But what purpose does it serve for me to come for a few days and head back to India. Instead, I took the original advice - apply for SB-1 when ready. My mother's treatment winded down in Dec'20. I started figuring out the options in Jan'21. I just did not know that SB-1 are historically/statistically very very very hard to get. 

 

I am still willing to explore SB-1 visa. However, one consequence of getting the SB-1 denied is that the consulate might keep our Greencards. That leaves us in the tricky position of not having a document to travel back with and loosing any chance of maintaining our residency.

 

And hence, we are exploring the option of flying out first. Legal advice on this has been - 1. The CBP office might let you in with a warning. 2. The officer might put you in removal proceedings where we have to appear before an immigration court where we have to show our stay was meant to be temporary (easier than "beyond our control") or 3. Put you in custody (rare). In this case, atleast we get to come back and have a chance of restoring our lives back. And from what it has been told to us, our case is much stronger to show the stay was meant to be "temporary" rather than "beyond our control".

 

However, it is hard to believe it could be as easy as just showing up and the CBP letting us in. Why would not everyone do this? Plus, what do we say if the officer asks us for a reason for not applying to SB-1 visa, as that is the procedurally correct way of coming back in this situation. 

 

As far as the second daughter goes, the advice has been, she can come in with us without any visa and get the LPR (if we are admitted).

 

And that is where we are. We continue to speak with attorney's. However, it has been split between both of these options. And without any predictable/guaranteed outcome. 

 

 

 

 

 

 

 

[Boiler 45,525]

The SB-1 is an option, I do not know the success rate, the cases we tend to see on here tend to be weak, obviously there are circumstances that qualify.

 

At least a Lawyer will know all the details, inevitably on forums like this we just know bits.

 

One thing that does intrigue me, I am aware of the 2 year 2nd daughter option, how does she travel? What document will she have that allows her to board a plane to the US.

[kar-pa-gam 0]

@Boiler - we were told that ideally the airlines know the rule - that a child under two year old can travel with either of the parent if presented with the child's birth certificate. A lawyer alsoo told us that we can write to the consulate and ask for a document called as the Boarding Foil. I am yet to look into yet. 

[Boiler 45,525]

We have members who work for Airlines and perhaps could better comment than I can, not sure how convinced I would be that Airlines know this very unusual situation.

 

Boarding Foil makes more sense, just wondered if the retaining status thing would come up.