overstayed beyond 1 year on GC

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sib_gm

Registered Users (C)
My wife had a GC before she travelled back to the home country. She overstayed beyond 1 year. She did not apply for RP thinking that she will return on time. I have a LPR status and we were married long before we got our GC.

1. She may not be allowed to admit to US without SB-1 visa.
2. If SB-1 is denied, does she need to apply for a new GC as dependent of GC holder (my understanding is that there is no waiting period for VISA number in this case since the marriage was long before my GC is issued) ?
3. Is it that she will be eligible for SB-1 automatically because she already had a green card (status not maintained) and dependent of a LPR ?

Please advice, what should be the best approach to get to the US.
 
She would need to apply for a new green card if the SB-1 is denied.

Did she already get her green card through you as a derivative? If yes, I seriously don't think she can get another derivative GC based on the same underlying petition after her GC has been cancelled. But if her GC was obtained independently of yours, she probably would be able to get a derivative one, having not used that option before. That's if your GC category allowed for a spouse as derivative beneficiary.

Dependent of LPR has nothing to do with eligibility for SB-1. She is automatically eligible to APPLY for it as a result of having a green card and staying outside the US for over a year without a reentry permit. But there is no guarantee of it being approved. She'll have to prove to the consulate that the trip was originally planned to be under a year, and unexpected circumstances stretched it beyond a year.
 
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Thanks a lot Jackolantern.

Yes, she got ger GC as a derivative of mine. It looks like that it will be difficult for her to get SB-1 and so her GC will become invalid. If she stays back in the home country till I become Citizen, will it be possible for her to get GC/Citizenship as a derivative of mine at that stage ?

Please respond
 
Here is my situation. I have valid GC (employment based), my wife got her GC as derivative of mine. Now, because she overstayed beyond 1 year, I feel that getting SB-1 (immigrant visa) would be difficult for her.

Can I sponsor her through Family based category (F2A) based GC and be in the queue. Will this process be treated differrently by USCIS than the previous employment based category spronsorship for my wife ? Please help.
 
sib_gm said:
Yes, she got ger GC as a derivative of mine. It looks like that it will be difficult for her to get SB-1 and so her GC will become invalid.
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SB-1 is only for people who have stayed outside beyond a year. If it's been only a few months past the 1 year limit, she should apply for the SB-1 and see what happens.

If she stays back in the home country till I become Citizen, will it be possible for her to get GC/Citizenship as a derivative of mine at that stage ?
Click to expand...
When you become a citizen, she'll be able to get a new GC, not as a derivative, but as your immediate relative.

Can I sponsor her through Family based category (F2A) based GC and be in the queue. Will this process be treated differrently by USCIS than the previous employment based category spronsorship for my wife ?
Click to expand...
Yes you can sponsor her in F2a, and yes it's different because it would be a marriage-based application for which she is the primary beneficiary, whereas her original GC was a derivative based on your employment. Some of the forms will be different, and the interview will have a different line of questioning.
 
Thanks Jackolantern a lot for your help on this,
my wife has been staying almost 1 year 8 months (she has been going medical treatment here, not so critical treatment that I can convince consulate to get her SB-1) and I do not need to take a chance on SB-1 because, if it is denied then her chances of getting B1/B2 will be almost nill. Rather I want her to surrender GC and apply for B1/B2 and then let me sponsor her on F2A. Since the current VISA bulletin (Oct, 2010) shows priority date of Jan 2010 for F2A, the wait time is not very much as compared to couple of years earlier (I am surprized by that), I hope it does not retrogress severly in near future.
However, I am in between the catch: Surrendering GC and getting B1/B2 (non-immigration VISA) will not help much for even single US trip because that will be mis-interpreted if I file immidiately for F2A sponsorship (immigration intent). So, it may be a good idea to try for SB-1 (I feel her case is very week) but denial may be interpreted negatively. So, in my opinion, surrendering GC is a better idea whether or not B1/B2 is applied or utilized. Please provide your opion.
 
The strategy of getting the B1/B2 and having her use it to attempt to re-immigrate is a bad idea for multiple reasons.

When applying for the B1/B2, they'll know she's married to a GC holder. She has to list this fact on the visa application, and they will also know it if they look into her original GC files. So even if she surrenders the GC, getting the B1/B2 will still be difficult as long as she's married to you and you have a GC or citizenship. She'd probably have to convince them that the marriage is falling apart and she's not going to stay with you. Then if you file an I-130 shortly after she enters the US, that would conflict with her claim that the marriage is dying.

And even if granted the B1/B2, there is the risk of being refused entry due to being married to you.

While in F2A, she has to be in the US legally to adjust status. So if you plan to have her enter with the B1/B2 and overstay, she'll have to wait until you become a US citizen. Meanwhile, she'll be deportable after her I-94 expires until you become a USC. And if deported, she'll be banned from the US for years.

Either way, surrendering the GC or not, the chances of her obtaining and successfully using a B1/B2 are not good. Her chances for the SB-1 visa are much better. Her case for the SB-1 is not weak; medical treatment is a common reason that is used to successfully obtain the SB-1. It doesn't have to be highly critical treatment, as they understand that many people will stay abroad for treatment due to cost and family support. Of course, she would have to provide appropriate documentation from the doctor/hospital, showing that the treatment or at least the diagnosis began before the 1 year ended, and it continued until recently or is still ongoing.
 
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Thanks Jackolantern once again for your input.

I understand your point. Yes, her treatment started before 1 year ended after she departed USA and still on going, so applying for SB-1 will be a good option. She needs to prove her US ties for the application: will the chance of success be better as we have a US Citizen child and a GC holder child with the same situation as my wife (stayed beyond 1 year), and me as valid GC holder other than my tax (joint) return and a bank a/c (still active) ?

In case, SB-1 is rejected, I need to try for F2A option. Is it that I need to file for I-130 in USA and she can adjust her status through consular processing once NVC intimates concerned consulate and the priority date becomes current ? OR is it that the only way for her to be in USA to adjust her status ?

Can she not use following-to-join benefits in F2A path ? Or she she has already used that option indirectly as a derivative of mine based on my employment ?

Please help.
 
Wait, there is a GC-holding child who also stayed outside beyond a year? Are you in the US? What about the USC child?

If the SB-1 is denied, she can re-immigrate through F2A consular processing (but it wouldn't be called "adjusting status", because adjusting status is what is done within the US).

I've never known of anybody to get a derivative GC a second time based on the same original petition, but I can't say for sure that it's impossible.
 
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All four family members are all living together since we departed US about 1 year and 8 months back. Myself have a valid re-entry permit (I was supposed to travel back and forth, thats why applied for) will exprire Nov, 2010. However, my wife and GC child do not have RP, I did not apply because we all were supposed to be back with in six month of time. USC child is also there with us all the time living together.

However, my wife has been diagonized with severe depression and doctor recommended that all family members need to stay with her until she recovers and associated help etc etc. So, none of us travelled to US so far. Since, she is recovering, I am planning to return using my RP alone before it expires (Nov, 2010). Now I am in a fix, how I can get my family back to US in this situation. USC child will not have any problem, however my GC wife and GC child are in trouble.
 
I would advise you to be back in the US when she is applying for the SB-1 for herself and your GC child. It would weaken her case if all of you are outside the US.
 
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