Shall we apply Sb1 visa on behalf of spouse

[kumar243]

I have few questions 

 

1) My wife GC holder can't travel with in year planning apply Sb1 visa  . she can't go US consulate in India due to medical condition  .shall we request drobox ?

2)  if her sb1 approved  and having  new born kid (India passport)  ,for new born kind  first time traveling to USA eligible for visa waiver program ?

3) if visa is waived at Port of entry what is the status of new kid status ?

4) with Sb1 do we need apply Green card again ?

 

[pontevecchio]

1. No such thing as Dropbox for this visa. In fact, there are 2 Interviews.

2. You do not mention any details.  If she returns as a GC holder, the child is eligible for a GC with certain caveats. No question of visa or visa waiver in these circumstances.

3. see 2.

4. No

A reentry permit would have prevented this issue. You should discuss the matter with a lawyer with all the facts, specially so if there is a pregnancy-related complication preventing travel.

[newacct]

1. It's very difficult to qualify for an SB-1 returning resident visa. If her green card is unexpired, an alternative is for her to fly back to the US on her green card, and try her luck with the immigration officer at entry and/or the immigration judge in removal proceedings. If the immigration officer at entry tries to pressure her into signing I-407 to relinquish her green card, she should refuse, and she will get a hearing with the immigration judge.

2. Instead of "visa waiver program", I think you are referring to the provision where a child born abroad to a permanent resident mother, can enter the US as an immigrant without a visa, if it is within 2 years of birth, and accompanied by either 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).)
 

Quote

(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.

(3)  Requiring Reentry Document of Child’s Parent:  The provisions of 9 FAM 201.2-3 paragraph b(1) and b(2) above apply only if the noncitizen parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), an SB-1 visa, or other appropriate documentation consistent with 8 CFR 211.1(a). With respect to 22 CFR 42.1(d), it is irrelevant whether the visa issued to the accompanying parent is an initial visa or a replacement visa.

(4)  Evidence of Parent-Child Relationship:  Parents must present the child's birth certificate or other evidence of parentage for the child to qualify under the provisions of 9 FAM 201.2-3 paragraph b(1) and (b)(2) above.

If those conditions are met, and your wife either has an SB-1 visa, then the child can enter without an immigrant visa, under this provision. I am not sure whether the provisions for the child to enter without visa apply if your wife is entering on a green card after an absence of more than 1 year, but they let her in.

Carriers are allowed to board the child for travel to the US without a visa. See CBP carrier information guide, page 2:

Quote

Child born abroad to lawful permanent resident may be boarded if the child was born during the temporary visit abroad of a mother who is a lawful permanent resident alien, or a national, of the United States. However, 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.

But if the airline refuses, you will need to file I-131A at a US consulate to get carrier documentation (though they will probably deny it if your wife has been absent for more than 1 year). See I-131A page, under Special Instructions:

Quote

 

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.

 

3. If the child enters as an immigrant without a visa, the child immediately becomes a US permanent resident (i.e. green card holder).

4. No

[kumar243]

Thanks for Replay 

  my  spouse ( in LPR status) had pregnancy she can't travel to USA  with in 365 days  .we got No fly certificate from  Indian Hospital during her pregnancy .

and  CBP (port of entry )  we will defiantly not sign on I-407 

I have  few question 

2)  do you see any risk  proceedings with  immigration judge  ?

3)  what kind of risk is there  to get sb1 approval ?

4) how many interviews are there for Sb1 approval  can u give more details ?