2 Year LPR-Overseas,SB1 or start all over again

[trablus 0]

Background:

My wife, child, and I were visiting family in North Africa, when I was able to find steady employment there, unlike in the U.S. where I used to work.

We have now been out of the U.S. since March 2009, and when we called to inquire with the U.S. consulate they stated that my wife would not be eligible to apply for the SB1 visa, as we should have returned back at least before the one year anniversary.

My wife had the 2 year permanent residency card, and we were waiting on the I-751 to be approved, and she had an ADIT stamp in her passport that was good only until the passport expired, which was in November 2009.

I was told that the SB-1 visa would apply for someone who is sick, or someone is caring for a parent, child, or sister/brother.

Now that the economic situation in the U.S. is better, we would like to return.

Any thoughts, on how to do this in the most efficient and effective matter.

Question:

(1) Is it not possible now to send the passport to an attorney to have the ADIT Stamp added again to her passport and resent to us in order for her to reenter?

(2) Also, the consulate officer in the U.S. Embassy stated that the SB1 is only used in critical situations as I mentioned above is that correct? I was under the impression that an economic recession would be a big reason why someone would have to leave...no job...no stability....

Thanks in advance...

[v333k 59]

Background:

My wife, child, and I were visiting family in North Africa, when I was able to find steady employment there, unlike in the U.S. where I used to work.

We have now been out of the U.S. since March 2009, and when we called to inquire with the U.S. consulate they stated that my wife would not be eligible to apply for the SB1 visa, as we should have returned back at least before the one year anniversary.

My wife had the 2 year permanent residency card, and we were waiting on the I-751 to be approved, and she had an ADIT stamp in her passport that was good only until the passport expired, which was in November 2009.

I was told that the SB-1 visa would apply for someone who is sick, or someone is caring for a parent, child, or sister/brother.

Now that the economic situation in the U.S. is better, we would like to return.

Any thoughts, on how to do this in the most efficient and effective matter.

Question:

(1) Is it not possible now to send the passport to an attorney to have the ADIT Stamp added again to her passport and resent to us in order for her to reenter?

(2) Also, the consulate officer in the U.S. Embassy stated that the SB1 is only used in critical situations as I mentioned above is that correct? I was under the impression that an economic recession would be a big reason why someone would have to leave...no job...no stability....

Thanks in advance...

Hi,

I am assuming that the the employment is not with a US company and is not based on government orders to work abroad.

That said, I am not familiar with the ADIT passport stamp so maybe what I am saying below is not applicable.

From my understanding, you should be able to get another stamp as long as the passport has been renewed.

Normally, when a LPR (whether conditional or permanent) leaves for periods longer than 6 months, you need to apply for a re-entry permit. Now that your wife has been outside the US for 1.5 years, it is possible that they will consider her residency abandoned and you might have to start AOS once again.

[Brother Hesekiel 2,235]

Your wife did not reside in the USA, so she can't remove conditions. As far as USCIS is concerned, she abandoned her residency and you will have to start over. The returning resident visa is just a way to travel to the US. There you will have to start the AOS process again. Another option is to file DCF from where you are. The result is the same: since you are married more than 2 years now, your wife will get an unrestricted Green Card this time, valid 10 years until it needs to be renewed.

[trablus 0]

Your wife did not reside in the USA, so she can't remove conditions. As far as USCIS is concerned, she abandoned her residency and you will have to start over. The returning resident visa is just a way to travel to the US. There you will have to start the AOS process again. Another option is to file DCF from where you are. The result is the same: since you are married more than 2 years now, your wife will get an unrestricted Green Card this time, valid 10 years until it needs to be renewed.

Dear Bob:

My apologies, as I have failed to provide the full synopsis of our visa journey. My wife originally went through the consular processing in 2006, and was granted her 2 year permanent residency.

She then moved to the U.S. in 2006 and lived there until we overstayed our vacation to North Africa, and have been overseas since March 2009.

In 2008, about six months before, we applied for the I-751 to remove conditions, and last week at my permanent residence in the U.S. I received a letter stating that we needed to submit additional evidence in order to remove conditions.

Question:

(1) If I submit all the evidence and then there in the U.S. they approve the green card, and mail it to our home in the U.S., will it be valid for her to use?

(2) How does the State Dept and USCIS determine or verify if one has overstayed or not, until they either return to the U.S. or reapply for an SB1 or start all over again?

(3) As for the SB-1 we would like to use it as, I have been offered a position in the States and my wife would like to continue in her studies, before we overstayed our vacation.

Any suggestions?

[v333k 59]

hi trablus,

It seems like there are two different topic intermingled here.

The first is removing conditions.

You said that in 2008, you filed to remove conditions and recevied an RFE (request for evidence). When did you get this letter? Normally, they allow 30 days before they assume you are not sending in any more. Unless this just happened, then they most probably made a decision by now.

The second is traveling and visas.

As Bob said, and as I mentioned in my first reply, continuous residency is a MUST for residents to retain their GC and maintain residency. If you have been outside the US and not on government orders it is considered that you have abandoned your residency. USCIS verifies how long people stayed outside the country by showing entry/exit stamps on your passport.

[Brother Hesekiel 2,235]

Question:

(1) If I submit all the evidence and then there in the U.S. they approve the green card, and mail it to our home in the U.S., will it be valid for her to use?

(2) How does the State Dept and USCIS determine or verify if one has overstayed or not, until they either return to the U.S. or reapply for an SB1 or start all over again?

(3) As for the SB-1 we would like to use it as, I have been offered a position in the States and my wife would like to continue in her studies, before we overstayed our vacation.

Any suggestions?

Let's assume a best case scenario here for a moment. You already did biometrics (did you?). You supplied the evidence requested with the RFE and you got a new Green Card in the Mail. (I doubt that this happened though.)

Now you use it to enter the US again, and the CBP officer scans it and sees on his screen that you have been absent for over a year and do not have a valid reentry permit. He or she thus determines that she has abandoned her residency. Am I sure? No. Is it likely: yes. Very likely? I don't know.

The returning resident visa allows her to reenter the US, but she has to establish residency again. In fact, using this basically implies that she abandoned her residency.

I hope Jim, or Rich, both of who are extremely knowledgeable about this, will chime in.