Gay father on LPR bring child born outside US
- Thread starter praytx
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Triple Citizen
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d_rampat
New Member
Did you find a solution for you case? Am in the same situation...
It took me over 8 years to get my child legalized as no laws existed but we (me and a few other aggrieved parties) raised our voices enough to get noticed. Seems like the US Government has recognized the loopholes in the laws which affects innocent children born through Surrogacy and have updated its laws/guidelines which we have been asking for years. Here is the updated link:
travel.state.gov
Please review and see if this updated guidelines helps your case. Each case is unique in its own ways and perhaps this solves your issue. If this most recent changes does not help your case, please share what's the "outlier/exception" so that can give you proper guidance.
All the best!
Report the Birth of U.S. Citizens Abroad
This page provides information about how to apply for a Consular Report of Birth Abroad, known as a CRBA.
Please review and see if this updated guidelines helps your case. Each case is unique in its own ways and perhaps this solves your issue. If this most recent changes does not help your case, please share what's the "outlier/exception" so that can give you proper guidance.
All the best!
This has nothing to do with your original question.It took me over 8 years to get my child legalized as no laws existed but we (me and a few other aggrieved parties) raised our voices enough to get noticed. Seems like the US Government has recognized the loopholes in the laws which affects innocent children born through Surrogacy and have updated its laws/guidelines which we have been asking for years. Here is the updated link:
Report the Birth of U.S. Citizens Abroad
This page provides information about how to apply for a Consular Report of Birth Abroad, known as a CRBA.
Please review and see if this updated guidelines helps your case. Each case is unique in its own ways and perhaps this solves your issue. If this most recent changes does not help your case, please share what's the "outlier/exception" so that can give you proper guidance.
All the best!
d_rampat
New Member
Are you currently in India with the child? You should contact the US Consulate and share this link with them as seems the US State Department is more aware and accommodating of these issues now than when me and my children had the same issue. First try the direct route, see what they say. Each case is individual and you may not be comfortable to share all personal details here which may impact the decision from Department of State. So you can share all the personal details of the case and then I can advise/guide accordingly OR you can reach out to Department of State directly. All I am saying the mood currently is vastly different than before and it is not comparing apples to apples. all the best!
d_rampat
New Member
The children will be born in Colombia. I am British, with a US greencard. Initial Colombia birth certificate will list the surrogate mother. After 12 months a new Colombia birth certificate will list me as the father and state mother “x” since the egg donor is anonymous. After 6 months they will be issued a UK parental order and new UK birth certificate with myself and my gay male partner as parents; no mother listed. They children will have British and Colombian passports.
Our question is how best to enter the US with the children. Either to get LPR status on arrival. Or they enter on some other kind of visa while I sponsor their LPR, but knowing the latter will take around 2 years.
The guidance you posted refers to citizens so I don’t see how the state department guidance is relevant to LPR children born abroad to an LPR father and a foreign (or unknown) mother.
I have spoken with multiple immigration attorneys and none can say for certain that LPR on entry will be granted since the law specifically says LPR passes through the mother only. Similarly the children may be denied entry on a tourist visa since the immigration officer would need proof that our intention is not to overstay their 6 month tourist visa.
Tha you so much for your guidance. I appreciate it.
Our question is how best to enter the US with the children. Either to get LPR status on arrival. Or they enter on some other kind of visa while I sponsor their LPR, but knowing the latter will take around 2 years.
The guidance you posted refers to citizens so I don’t see how the state department guidance is relevant to LPR children born abroad to an LPR father and a foreign (or unknown) mother.
I have spoken with multiple immigration attorneys and none can say for certain that LPR on entry will be granted since the law specifically says LPR passes through the mother only. Similarly the children may be denied entry on a tourist visa since the immigration officer would need proof that our intention is not to overstay their 6 month tourist visa.
Tha you so much for your guidance. I appreciate it.
I think you are confusing completely different things here. The issue with US citizenship at birth is with whether a blood relationship is necessary. The statute provides US ciitzenship at birth automatically when the conditions are met. The question is about the interpretation of the statute. The government had previously interpreted the statute as requiring a blood relationship, but the statute doesn't explicitly require it, and there have been several successful lawsuits in the last few decades arguing that a child that did not have a blood relationship to the US citizen parent can get US citizenship at birth, if the US citizen parent was a legal parent at the time of birth. Both the Department of State and USCIS have recently changed their interpretation to accept this.
However, the issue with the OP is not about blood relationship -- blood relationship has never been required for the purposes of getting a green card, as for example stepparents can petition stepchildren. The problem here is with a provision allowing the entry of immigrant children without an immigrant visa. This is not provided by statute, but by regulation in 8 CFR 211.1(b)(1). It provides a waiver to the requirement of an immigrant needing an immigrant visa, in the case of 1) a child born after the issuance of immigrant visa to a parent (in this case it's either parent), and before the parent enters the US with that immigrant visa, or 2) a child under 2, born during a temporary visit abroad of an LPR mother, who is accompanied by an LPR parent on that parent's first return to the US after the child's birth. In the second case (which is relevant here), the text specifically says "mother", so I don't see much room for interpretation of the meaning. Again, blood relationship is not the issue -- a child who is the biological child of an LPR father born during that father's trip abroad would not be able to take advantage of this provision. You might try to challenge the regulation on the basis that it is discriminatory, and argue that it should apply to parents of any gender; I don't know how successful it would be. The waiver authority (that this provision is an exercise of) is a discretionary power of the government. Or, you could contact DHS and try to have them modify the regulation to allow parents of both genders, but this is a long process that would take years.
However, the issue with the OP is not about blood relationship -- blood relationship has never been required for the purposes of getting a green card, as for example stepparents can petition stepchildren. The problem here is with a provision allowing the entry of immigrant children without an immigrant visa. This is not provided by statute, but by regulation in 8 CFR 211.1(b)(1). It provides a waiver to the requirement of an immigrant needing an immigrant visa, in the case of 1) a child born after the issuance of immigrant visa to a parent (in this case it's either parent), and before the parent enters the US with that immigrant visa, or 2) a child under 2, born during a temporary visit abroad of an LPR mother, who is accompanied by an LPR parent on that parent's first return to the US after the child's birth. In the second case (which is relevant here), the text specifically says "mother", so I don't see much room for interpretation of the meaning. Again, blood relationship is not the issue -- a child who is the biological child of an LPR father born during that father's trip abroad would not be able to take advantage of this provision. You might try to challenge the regulation on the basis that it is discriminatory, and argue that it should apply to parents of any gender; I don't know how successful it would be. The waiver authority (that this provision is an exercise of) is a discretionary power of the government. Or, you could contact DHS and try to have them modify the regulation to allow parents of both genders, but this is a long process that would take years.
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@d_rampat I understand your situation. Will the children have a passport when they travel out of Columbia and of what country? UK or Columbia?
I do not know who @newacct is and whether they have any direct experience in securing legal rights of an international surrogacy born child? @d_rampat asked me what we did in our case. While on paper, I see what @newacct is stating and it is the law which as they have pointed out is discriminatory against children of LPR fathers and I agree. It is important to highlight "discrimination against children". As they pointed out, changing this law will take years even though the ask is for "equality of children" which apparently the entire world loves to talk about but action is excruciatingly slow. @d_rampat asked what I suggest, so here is what I am suggesting. Thank you @newacct for stating the obvious that the laws are discriminatory. It took me years to convince the US government of this simple facts which translated into LOST time by my children to secure their legal rights. All I wish is the bureaucracy was more "accepting" of facts rather than feel insulted that current US laws discriminate children of LPR fathers born outside the US. This attitude stagnates and does not allow us to move forward.
1) Recognize this discrimination of children of LPR fathers is now well understood within the Department of State and the assumption is they may be willing to work with you out of compassion for the child on a one-off basis. There is limited information I can share in an open public forum but I hope you are able to read between the lines or can DM me.
2) Make your case directly with Department of State/USCIS and the starting point would be the Consulate of your jurisdiction. You can also approach the Office of Child Welfare Division within the Department of State as ultimately it affects the welfare of the child.
3) See what the GOvernment agencies state - perhaps they show you the book as @newacct has said and ultimately answer is no until the laws are changed. You go with plea of compassion, you may make some ground. Either way, you will have a written response from the Government which you can use how you see fit.
4) Whether compassion works or not, what are the other options? Fight to get equality for your children - join the club and am happy to partner with anyone who would like to ask for these rights for children but a long process. Also, the cost is immense in this option - do you spend 24/7 in caring for a newborn OR use the same time to fight for the rights of children like them? Also it is costly. How do you balance both?
Other option is to continuously petition for compassion. Thats how equality comes, sad but true. As much as equality is a right, it is secured via compassion of others who are mostly unaffected by the issues we are facing. You probably thought you were just wanting a child to love and never imagined the fight to secure the rights of the same child. Yep, now you are getting more than you asked for. Saddle in and be ready to be resilient and patient. Not to scare you but I am extremely hopeful that the US government will be more compassionate towards you and your children and all who come now and allow them their equal rights. Hopefully, they have learnt the lessons form cases like ours. Rather than following the path we took which is what will happen as per laws and @newacct suggested, I am recommending first an approach of ask for compassion, hope it works and if it doesn't, you will have documented written responses/actions.
Long story short, the laws are not on the side of LPR fathers or children of LPR fathers as it stands today. You have to decide what's best for you and your child(ren). I hope this helps and wish you all the best.
I do not know who @newacct is and whether they have any direct experience in securing legal rights of an international surrogacy born child? @d_rampat asked me what we did in our case. While on paper, I see what @newacct is stating and it is the law which as they have pointed out is discriminatory against children of LPR fathers and I agree. It is important to highlight "discrimination against children". As they pointed out, changing this law will take years even though the ask is for "equality of children" which apparently the entire world loves to talk about but action is excruciatingly slow. @d_rampat asked what I suggest, so here is what I am suggesting. Thank you @newacct for stating the obvious that the laws are discriminatory. It took me years to convince the US government of this simple facts which translated into LOST time by my children to secure their legal rights. All I wish is the bureaucracy was more "accepting" of facts rather than feel insulted that current US laws discriminate children of LPR fathers born outside the US. This attitude stagnates and does not allow us to move forward.
1) Recognize this discrimination of children of LPR fathers is now well understood within the Department of State and the assumption is they may be willing to work with you out of compassion for the child on a one-off basis. There is limited information I can share in an open public forum but I hope you are able to read between the lines or can DM me.
2) Make your case directly with Department of State/USCIS and the starting point would be the Consulate of your jurisdiction. You can also approach the Office of Child Welfare Division within the Department of State as ultimately it affects the welfare of the child.
3) See what the GOvernment agencies state - perhaps they show you the book as @newacct has said and ultimately answer is no until the laws are changed. You go with plea of compassion, you may make some ground. Either way, you will have a written response from the Government which you can use how you see fit.
4) Whether compassion works or not, what are the other options? Fight to get equality for your children - join the club and am happy to partner with anyone who would like to ask for these rights for children but a long process. Also, the cost is immense in this option - do you spend 24/7 in caring for a newborn OR use the same time to fight for the rights of children like them? Also it is costly. How do you balance both?
Other option is to continuously petition for compassion. Thats how equality comes, sad but true. As much as equality is a right, it is secured via compassion of others who are mostly unaffected by the issues we are facing. You probably thought you were just wanting a child to love and never imagined the fight to secure the rights of the same child. Yep, now you are getting more than you asked for. Saddle in and be ready to be resilient and patient. Not to scare you but I am extremely hopeful that the US government will be more compassionate towards you and your children and all who come now and allow them their equal rights. Hopefully, they have learnt the lessons form cases like ours. Rather than following the path we took which is what will happen as per laws and @newacct suggested, I am recommending first an approach of ask for compassion, hope it works and if it doesn't, you will have documented written responses/actions.
Long story short, the laws are not on the side of LPR fathers or children of LPR fathers as it stands today. You have to decide what's best for you and your child(ren). I hope this helps and wish you all the best.