If it was just you returning, then you would probably have more chance of success by just flying to the US with your green card and trying to enter. Although the green card is not a valid document for re-entry after an absence of more than 1 year, the officer has the ability to waive your failure to have a valid document, if they determine that you haven't abandoned residency. It is easier for that to happen than for you to get an SB1 returning resident visa, which requires you to show that you couldn't return earlier due to "circumstances beyond your control". Furthermore, you are entitled to a hearing in immigration court as a green card holder who is denied entry at the port of entry, while you don't have much recourse to challenge a visa denial.
However, with your child, it is more complicated. Normally, a child born abroad during a permanent resident mother's trip abroad, can be brought back to the US and enter as a permanent resident without needing an immigrant visa, if they are brought before age 2 with a permanent resident parent on that parent's first return to the US after the child's birth. See
9 FAM 201.2-3.b(2):
(2) Child Born to an LPR: A child born of a Lawful Permanent Resident mother during a temporary visit abroad is not required to obtain an immigrant visa if
(a) seeking admission within 2 years of birth; and
(b) accompanied by either parent, who is applying for readmission upon first return after the birth of the child. The accompanying parent must be found admissible for the accompanying child to be eligible for admission without an immigrant visa.
The US allows airlines to board such a child for a flight to the US without a visa. See the
CBP carrier information guide, page 6:
Child born abroad to lawful permanent resident may be boarded/admitted as a new immigrant without presenting an immigrant visa if the child was born during the temporary visit abroad of a mother who is a lawful permanent resident alien of the United States. The child’s application for admission to the United States must be made within two years of birth and the child is accompanied by the parent who is applying for readmission as a permanent resident upon the first return of the parent to the United States after the birth of the child.
However, the airline and India's exit controls might not allow the child to board without a visa. In that case, you would have to file an I-131A with a US consulate for a boarding foil. See the
I-131A page, under Special Instructions:
If you have a child who was born outside the United States, you may need to request carrier documentation if:
- You are an LPR or have an immigrant visa;
- Your child is under 2 years old; and
- Your child is traveling with you to come to the United States for the first time.
We recommend checking with your airline or transportation carrier first to ensure they will board your child in these circumstances without carrier documentation. If the airline or transportation carrier refuses to board your child without carrier documentation, you will need to pay for and submit a Form I-131A for your child.
The problem with that is that if you go to the consulate for a boarding foil for your child on the basis of you bringing the child back to the US, and they see that you have been outside the US for more than a year, the consulate will insist that you get an SB1 returning resident visa before they will issue a boarding foil for your child.
Is your spouse also a permanent resident? If so, and if your spouse has been absent from the US for less than a year, and has not re-entered the US after the birth of the child, perhaps you guys can get a boarding foil for the child on the basis of the child accompanying your spouse.
