Gay father on LPR bring child born outside US

[praytx]

What if a gay father on US LPR wants to bring their child to the US born to a donor and surrogate in India. There is no biological mother in this sense. Is it possiblefor the LPR father to bring the child to the US?

Kindly refer to the following document:

http://www.state.gov/documents/organization/87519.pdf

Please search for '9 FAM 42.1 N1.1 Child Born After Issuance of Visa to Parent' and please review requirement number (2) a. It states that if the child is born of a 'permanent resident mother'. In this case, who is the mother? Is it the anonymous donor who is an Indian citizen and not LPR or is it the surrogate who delivered the child and not LPR either. In this unique case, the father is the only LPR then. So he cannot claim the child was born of a 'permanent resident mother'. He would fail that clause. Is the understanding correct?

thanks!

 

[BigJoe5]

8 CFR 211.1

(b) Waivers. (1) A waiver of the visa required in paragraph (a) of this section shall be granted without fee or application by the district director, upon presentation of the child's birth certificate, to a child born subsequent to the issuance of an immigrant visa to his or her accompanying parent who applies for admission during the validity of such a visa; or a child born during the temporary visit abroad of a mother who is a lawful permanent resident alien, or a national, of the United States, provided that the child's application for admission to the United States is made within 2 years of birth, 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, and the accompanying parent is found to be admissible to the United States.

there is more at: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/index.tpl

However, you may have bigger issues if you are not the biological father who used a surrogate as the mother. Your post is slightly ambiguous on this point. You used a a surrogate AND a donor but did not specify what was donated, the sperm or the egg or BOTH.

 

[praytx]

Child born outside US

Hi BigJoe5,

thank you very much for the response.

The biological father's sperm was used to have the child. So to state clearly, father is a LPR, went to India, used his sperm. Had an anonymous egg donor and a surrogate and had the child through IVF. Now how do you get the child to the US?

In the 8 CFR reference you have posted and in the 9 FAM N1.1 reference I have cited, both mention the child can enter US under 2 years of age born to a LPR mother. I would fail this one clause.

the case is complicated and too many details. so I apologize for not stating it clearly. Please feel free to ask whatever information you need.

looking forward to your response.

 

[BigJoe5]

INA Sec. 211. [8 U.S.C. 1181]

(a) Except as provided in subsection (b) and subsection (c) no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and (2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General. With respect to immigrants to be admitted under quotas of quota areas prior to June 30, 1968, no immigrant visa shall be deemed valid unless the immigrant is properly chargeable to the quota area under the quota of which the visa is issued.

(b) Notwithstanding the provisions of section 212(a)(7)(A) of this Act in such cases or in such classes of cases and under such conditions as may be by regulations prescribed, returning resident immigrants, defined in section 101(a)(27)(A) , who are otherwise admissible may be readmitted to the United States by the Attorney General in his discretion without being required to obtain a passport, immigrant visa, reentry permit or other documentation.

(c) The provisions of subsection (a) shall not apply to an alien whom the Attorney General admits to the United States under section 207.



Both the statute and regulation refer to a "parent"as well. Puzzle this: If an LPR mother dies in childbirth, can the baby's LPR father bring it back? Answer--yes. Think about it, IF the new baby only has one LPR parent then that parent can bring it back. ou need to consult someone versed in international law and family law to make sure that you are legally recognized as the parent. After ensuring that fact, consult an immigration attorney for any caselaw on this issue.

I don't think you actually have any problem in bringing the child back to the U.S. based on the information you have provided and assuming it is 100% true and accurate.

 

[Jackolantern]

Both the statute and regulation refer to a "parent"as well. Puzzle this: If an LPR mother dies in childbirth, can the baby's LPR father bring it back? Answer--yes. Think about it, IF the new baby only has one LPR parent then that parent can bring it back.

The provision for bringing the baby with the LPR parent and obtaining instant LPR status at the POE is only applicable if the mother was an LPR at the time of giving birth. If the baby has only one LPR parent, that parent must be the mother. If the baby were born to a non-LPR mother, the LPR father can't bring the baby. If both parents are LPRs, either parent may bring the baby.

 

[praytx]

Hello JackoLantern:

The understanding that the birth giving mother should be LPR. In this case who is the mother? the donor or surrogate? and there are plenty of caselaws to show surrogate as the mother. In this case, neither the donor nor the surrogate are LPR. So how does the LPR father get the child back to US? As per the language in 9 FAM N1.1, I dont think it is possible and JackOLantern agrees with this, correct?

As BigJoe5 pointed out, LPR father is allowed to bring child to the US by applying for the child's LPR under family-based greencard. However, this route is NOT immediate as the spot issuance of LPR status to child under 2 years of age at POE IF child born outside US to LPR mother. Second, this route also complicates the situation further. This route takes longer and the timeline is slightly undefined. The LPR father and child is Indian citizen, which makes the family based GC process in excess of at least 3-4 years based on current approval timelines. Who takes care of the child in the meantime? what if the father goes to India to take care of the child and it takes an excess of 2 years and now risks losing his own LPR for overstaying outside US in excess of 2 years.

The question is how does this LPR father get the child to the US?

Please feel free to ask whatever information you need. thanks!

 

[Jackolantern]

Is the baby born or conceived yet? If not, delaying the surrogacy arrangement until the LPR father becomes a US citizen would allow the child to acquire US citizenship and a US passport if the other relevant requirements are met.

http://travel.state.gov/law/citizenship/citizenship_5199.html

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “New” Section 309(a)

A person born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) of the INA, as made applicable by the “new” Section 309(a) of the INA provided:

A blood relationship between the person and the father is established by clear and convincing evidence;
The father had the nationality of the United States at the time of the person’s birth;
The father was physically present in the United States or its outlying possessions prior to the child’s birth for five years, at least two of which were after reaching the age of 14.
The father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
While the person is under the age of 18 years --
the person is legitimated under the law of his/her residence or domicile,
the father acknowledges paternity of the person in writing under oath, or
the paternity of the person is established by adjudication of a competent court.

Otherwise, with an LPR father and no LPR mother, the only option is to file I-130 and wait for the required amount of time.

 

[praytx]

Hello JackOLantern,

You have validated my worst fear. Baby is already here and I am in India taking care of the baby. After all, one cannot shrug off their responsibilities simply because law has not caught up yet with technology.

What I want is a good lawyer. Maybe Mr. Rajiv Khanna can help. It is a very unique and rare case but all is factual. I am living my worst reality as we speak. The bright spot is my lovely angel which keeps me going.

If there is a lawyer here who is willing to fight this case, then please contact me.

Thanks!

 

[Jackolantern]

Go ahead and consult the lawyer, but they will only confirm that all you can do is file the petition and wait*. If you become a US citizen before the normal 3-4 wait for children of LPR, you can upgrade the petition which would cut down the wait time to under a year. But if you want to become a USC, you have to avoid spending so much time outside the US to the point where you end up disqualifying yourself from citizenship.

Given the medical and legal complexities of your situation and the planning that went into it, it is extremely puzzling that you didn't consult an immigration lawyer before the pregnancy or otherwise do sufficient research on your own.


*unless the baby was born before you became an LPR, which may provide some hope for a derivative GC for the baby depending on how and when you got your green card. What was the basis of your green card -- employment? A relative? Which relative? Were you the primary applicant, or a derivative? Was your green card approved before or after the birth?

 

[praytx]

Hi JackoLantern,

I appreciate your response. You are absolutely right that this case is very complicated and borders on lines of morality and ethical behavior.

I have been following you for several years on this forum and value your opinion and research. I knew about this special situation beforehand but there are circumstances beyond my control. I do not wish to use the forum for personal situation. If you want context of the situation, feel free to PM me and I dont mind sharing privately. But trust me, this circumstance was well researched and understood. Sometimes in life we do deeds that make no legal sense but are purely based on good faith.

To answer your other questions (so that future readers have complete information of the case), the child was born after I got my LPR. It was employment based and I am the primary applicant.

What I want is a lawyer to fight this case and make the public aware. I believe the law is unfair and not equal. Either LPR mother and father should be allowed or neither. At least, both genders would have equal treatment. Immigration to US is an internal matter but separating families across international boundaries is not.

Thanks!

 

[Jackolantern]

The provision for the LPR mother giving birth abroad, and the reason the father doesn't get the same benefit, is based on the medical realities surrounding pregnancy and childbirth and recovery. Fathers don't have any such medical constraints related to childbirth.

It is a hopeless case to argue for equalization of this particular provision, given the biological and medical differences between mothers and fathers. Numerous laws and court cases in and outside of immigration have been upheld based on those real differences.

However, there is some hope in pushing for more general relief for the spouses and minor children of LPRs. Years ago there was the V visa which allowed those family members to join the LPR parent or spouse in the US while waiting for the green card. And politicians in the past have proposed bills that would exempt the spouses and minor children or LPRs from the annual 2nd preference quota, thereby reducing the wait time to under a year.

When do you become eligible for citizenship? Or have you already spent so much time outside the US that you're no longer eligible for citizenship on your 5 year GC anniversary?

But trust me, this circumstance was well researched and understood.

Except for the immigration aspect of it. I presume you consulted a lawyer for the legal paternity/custody aspect of the surrogacy, so it's odd that you didn't also consult one regarding immigration. But what's done is done (or rather, what wasn't done isn't done). Now you just have to figure out how to make the best of the situation going forward.

 

[raevsky]

22 cfr 42.1

(e) Child born of a national or lawful permanent resident mother during her temporary visit abroad. An alien child born during the temporary visit abroad of a mother who is a national or lawful permanent resident of the United States if applying for admission within 2 years of birth and accompanied by either parent applying and eligible for readmission as a permanent resident upon that parent's first return to the United States after the child's birth.

9 FAM 42.1 N2.1 Child Under Two Years of Age Born of Permanent Resident Alien Mother During Temporary Visit Abroad

The key here is the child is born of the LPR woman. It is a case with neither woman.

Given the medical and legal complexities of your situation and the planning that went into it

Even though the situation is rather complex medically, I do not see any legal complexity here.
The child was born of a woman who was not an LPR at the time of the birth. That is clear and convincing.
So,
1. The won who gave a birth to the child was not an LPR.
2. The other woman involved did not give a birth to the child.

In this case who is the mother?

The definition of motherhood is pretty much irrelevant here. The precondition was void for either woman even if both of them are mothers of the child.

 

[Jackolantern]

Given the medical and legal complexities of your situation and the planning that went into it

I do not see any complexity here.

There are medical and legal complexities involved in surrogacy. So it is logical to expect the prospective parents to have consultations with legal and medical professionals before the pregnancy.

 

[raevsky]

Yes, I see legal complexity with family law. Not with US immigration law though.

 

[Jackolantern]

Yes, I see legal complexity with family law. Not with US immigration law though.

The isolated aspect of the baby (not) qualifying for LPR status at the POE isn't complex. But the overall complexity of the situation is what should lead one to consult all the relevant experts to cover all bases -- legal, financial, medical, immigration, etc. -- or to do sufficient research before the fact.

Somehow the immigration aspect got omitted from the consultations and research. Which makes me wonder if any other aspects were also inadequately handled. For example, was there a DNA test to confirm that the OP is really the father, not some other man who secretly slept with the surrogate mother? Have the legal paternity and custody matters been settled so neither the birth mother nor egg donor has any legal claim to prevent the child from leaving India after the I-130 and CP runs its course?

 

[raevsky]

Somehow the immigration aspect got omitted from the consultations and research. Which makes me wonder if any other aspects were also inadequately handled. For example, was there a DNA test to confirm that the OP is really the father, not some other man who secretly slept with the surrogate mother? Have the legal paternity and custody matters been settled so neither the birth mother nor egg donor has any legal claim to prevent the child from leaving India after the I-130 and CP runs its course?

If we are talking about immediate relative immigration or family immigration to the LPR or US citizen father or mother, biological paternity or maternity does not matter. What does matter in that the father or mother is actually the legal birth father or mother of the child, according to local laws of the place of birth, as well as established parent-child relationship.
If, instead, we are talking about about birthright citizenship via US citizen father or mother (in case the father or mother is a US citizen at the time of childbirth), biological paternity or maternity is very important.

 

[Jackolantern]

If we are talking about immediate relative immigration or family immigration to the LPR or US citizen father or mother, biological paternity or maternity does not matter. What does matter in that the father or mother is actually the legal birth father or mother of the child, according to local laws of the place of birth, as well as established parent-child relationship.

Biological parentage doesn't matter, except where it matters. The consulates often request DNA tests when the circumstances create doubt about paternity, and in a surrogate case involving a petition for an infant they will almost surely require the testing if the petitioning father claims to be the bio father. And if the bio father is really some dude the mother slept with, the dude could show up and claim paternity. And without biological parentage of the child or marriage to the biological parent, USCIS would treat the case as an adoption, which is more complex and restricted for LPR petitioners.

 

[raevsky]

http://www.uscis.gov/ilink/docView/...1261/0-0-0-12632/0-0-0-12890.html#0-0-0-10217

(iii) Primary evidence for an illegitimate child or son or daughter. If a petition is submitted by the mother, the child's birth certificate, issued by civil authorities and showing the mother's name, must accompany the petition. If the mother's name on the birth certificate is different from her name as reflected in the petition, evidence of the name change must also be submitted. If the petition is submitted by the purported father of a child or son or daughter born out of wedlock, the father must show that he is the natural father and that a bona fide parent-child rel ationship was established when the child or son or daughter was unmarried and under twenty-one years of age. Such a relationship will be deemed to exist or to have existed where the father demonstrates or has demonstrated an active concern for the child's support, instruction, and general welfare. Primary evidence to establish that the petitioner is the child's natural father is the beneficiary's birth certificate, issued by civil authorities and showing the father's name. If the father's name has been l egally changed, evidence of the name change must accompany the petition. Evidence of a parent/child relationship should establish more than merely a biological relationship. Emotional and/or financial ties or a genuine concern and interest by the father for the child's support, instruction, and general welfare must be shown. There should be evidence that the father and child actually lived together or that the father held the child out as being his own, that he provided for some or all of the child's ne eds, or that in general the father's behavior evidenced a genuine concern for the child. The most persuasive evidence for establishing a bona fide parent/child relationship and financial responsibility by the father is documentary evidence which was contemporaneous with the events in question. Such evidence may include, but is not limited to: money order receipts or cancelled checks showing the father's financial support of the beneficiary; the father's income tax returns; the father's medical or insuran ce records which include the beneficiary as a dependent; school records for the beneficiary; correspondence between the parties; or notarized affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

When primary evidence is not available, a secondary evidence could be used.

(v) Secondary evidence. When it is established that primary evidence is not available, secondary evidence may be accepted. To determine the availability of primary documents, the Service will refer to the Department of State's Foreign Affairs Manual (FAM). When the FAM shows that primary documents are generally available in the country at issue but the petitioner claims that his or her document is unavailable, a letter from the appropriate registrar stating that the document is not available will be required before the Service will accept secondary evidence. Secondary evidence will be evaluated for its authenticity and credibility. Secondary evidence may take the form of historical evidence; such evidence must have been issued contemporaneously with the event which it documents and may include, but is not limited to, medical records, school records, and religious documents. Affidavits may also be accepted. When affidavits are submitted, they must be sworn to by persons who were born at the time of and who have personal know ledge of the event to which they attest. Any affidavit must contain the affiant's full name and address, date and place of birth, relationship to the party, if any, and complete details concerning how the affiant acquired knowledge of the event.

Blood tests could be required only when no primary or secondary evidence could be used

(vi) Blood tests. The director may require that a specific Blood Group Antigen Test be conducted of the beneficiary and the beneficiary's father and mother. In general, blood tests will be required only after other forms of evidence have proven inconclusive. If the specific Blood Group Antigen Test is also found not to be conclusive and the director determines that additional evidence is needed, a Human Leucocyte Antigen (HLA) test may be requested. Tests will be conducted, at the expense of the petitioner or beneficiar y, by the United States Public Health Service physician who is authorized overseas or by a qualified medical specialist designated by the district director. The results of the test should be reported on Form G-620. Refusal to submit to a Specific Blood Group Antigen or HLA test when requested may constitute a basis for denial of the petition, unless a legitimate religious objection has been established. When a legitimate religious objection is established, alternate forms of evidence may be considered ba sed upon documentation already submitted.

Moreover, father coul legitimate the child

(ii) Primary evidence for a legitimated child or son or daughter. A child can be legitimated through the marriage of his or her natural parents, by the laws of the country or state of the child's residence or domicile, or by the laws of the country or state of the father's residence or domicile. If the legitimation is based on the natural parents' marriage, such marriage must have taken place while the child was under the age of eighteen. If the legitimation is based on the laws of the country or state of the child's residence or domicile, the law must have taken eff ect before the child's eighteenth birthday. If the legitimation is based on the laws of the country or state of the father's residence or domicile, the father must have resided--while the child was under eighteen years of age--in the country or state under whose laws the child has been legitimated. Primary evidence of the relationship should consist of the beneficiary's birth certificate and the parents' marriage certificate or other evidence of legitimation issued by civil authorities.

A number of US states allow legitimation, and the father in the US could legitimate a child out of US. This evidence substitutes other evidences if the child is legitimated.

The consulates often request DNA tests when the circumstances create doubt about paternity

Blood test is required under some circumstances, generally when primary and secondary evidence does not exist.

 

[praytx]

Hi JackOLantern,

Appreciate all your responses. Someone reviewed the text in 9 FAM 42.1. N1.1 and the clause reads as follows:

9 FAM 42.1 N1.1 Child Born After Issuance of Visa to Parent
(CT:VISA-1173; 03-30-2009)
The child born after the issuance of a visa to a parent is not required to have a visa if the child is:
(1) Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent’s immigrant visa and the child is entitled to derivative status; or
(2) Born during the permanent resident mother’s temporary visit abroad provided that (see 9 FAM 42.1 N2):
(a) Admission is within two years of birth; and
(b) Either accompanying parent is applying for readmission upon first return after the birth of the child.

As per clause (1) above, doesnt this qualify the father on LPR to bring the child to the US? There is an 'or' between clause (1) and (2).

thanks!

 

[Jackolantern]

Hi JackOLantern,

Appreciate all your responses. Someone reviewed the text in 9 FAM 42.1. N1.1 and the clause reads as follows:

9 FAM 42.1 N1.1 Child Born After Issuance of Visa to Parent
(CT:VISA-1173; 03-30-2009)
The child born after the issuance of a visa to a parent is not required to have a visa if the child is:
(1) Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent’s immigrant visa and the child is entitled to derivative status; or
(2) Born during the permanent resident mother’s temporary visit abroad provided that (see 9 FAM 42.1 N2):
(a) Admission is within two years of birth; and
(b) Either accompanying parent is applying for readmission upon first return after the birth of the child.

As per clause (1) above, doesnt this qualify the father on LPR to bring the child to the US? There is an 'or' between clause (1) and (2).

You don't qualify for (1). It says "within the validity of the parent’s immigrant visa". Correct me if I'm wrong, but you didn't get an immigrant visa (which is issued only if you get the GC via consular processing), you got your GC through adjustment of status. In addition, even if you got an immigrant visa, it is only valid for 6 months and you've had a green card for more than 6 months.