Green Card for New born ?

Discussion in 'Lottery Visas - DV' started by Grand, Nov 16, 2017.

  1. Grand

    Grand New Member

    Dear All,

    We had the chance to receive our GC in June this Year. We went to the US for 1 month and came back to France so that my wife can give birth here (late August).

    We are moving to the US (final immigration) this December with our baby. We didn't came back to the US before, so this will be the first re-entry for us (and the 1st for the baby).
    What do we have to do for our son to have his GC ?

    Simon, I read your excellent blog post about this topic but I was wondering if, in term of paper work, there is something to do prior to the arrival or should we just present ourselves at the POE and start from there ?
    Our son has his passport.

    Thanks for your help !

  2. SusieQQQ

    SusieQQQ Well-Known Member

    Under U.S. immigration regulations, children who meet the following criteria do not need to obtain a visa to immigrate to the United States.

    1. The child born abroad after the issuance of an immigrant visa is accompanying parent within the validity of the parent’s immigrant visa, or
    2. The child born during the permanent resident mother’s temporary visit abroad provided that;
      1. Admission is within 2 years of birth; and
      2. Either accompanying parent is applying for readmission upon first return after the birth of the child.
    Generally, the child should present the following information or documents to apply for admission.

    1. Valid passport or travel document
    2. Child’s birth certificate listing both the mother and the father (An English translation if the original document is not in English)
    3. Proof of parent’s permanent resident status (a valid permanent resident card “green card”, or a valid re-entry permit)
    While technically you don’t need anything else, you may want to get a transportation letter for the baby from the US embassy to ensure no problems boarding for your flight.
  3. Grand

    Grand New Member

    Hi SusieQQQ !

    Thanks a lot for your answer. I am going to ask for a Child's birth certificate in english then :)

    But eventually, our son should have a GC right ? I guess he has to ask for it when he will grow up ?
  4. Sm1smom

    Sm1smom Super Moderator

    Baby will be processed for a GC at the POE, which will get sent out eventually.
  5. Grand

    Grand New Member

    Alright Sm 1smom, thanks for this information ! So nothing more to care about I guess :)
  6. SusieQQQ

    SusieQQQ Well-Known Member

    Yup, it does say “do not need a visa to immigrate” but i guess if you’re not familiar with it, it’s not immediately obvious that it means he’ll be processed for a green card - should have clarified that in the answer too.
  7. Sm1smom

    Sm1smom Super Moderator

    Don’t get us wrong, you may still have to do some follow ups with USCIS after a couple of months to make sure baby’s GC gets issued. He will be processed as a LPR at the POE without a doubt, they just may drop the ball when it comes to producing the actual GC. That’s when you’ll need to start following up on things.
  8. Sm1smom

    Sm1smom Super Moderator

    In addition to what Susie listed above, I recommend you get two passport photos for the baby.

    Also request for an extra copy of the birth certificate from the issuing authority so that you have an extra original copy on hand. The one you present at the POE will be collected and I don’t think you want to be without an original birth certificate for a prolonged period of time while waiting for the GC to get issued.
  9. Grand

    Grand New Member

    Hi Everyone !

    Just to give you a little bit of feed-back on our story.

    Before we took our flight for the US last week, the french company wanted either a GG or an Esta... Our situation didn't fit their scenario...

    So we had to go with an esta. And our baby wasn't processed as a LPR at the POE. The guy there asked if we had all the GC paperwork ready for our baby, but we couldn't have those because the people at the US ambassy told us we didn't need to...

    Anyway, so our son came in with an esta and I called the USCIS this afternoon : they told me that now we have to fill the form I 130 and go with the process of the Petition for an alien relative.

    I was quite surprised to learn this news because my understanding was that, as we had our GC while my wife was pregnant, and we came back to France for her to give birth, it would be not question that when we came back to the US our son would have his GC...

    Any though on that ?

    Thanks for your contribution !
  10. SusieQQQ

    SusieQQQ Well-Known Member

    I’m not a lawyer but unfortunately as I understand it - because the baby entered on an ESTA it was processed as a tourist, hence now having to petition. This is why we usually suggest people get a transportation letter from the embassy for the airlines.
    For green card processing as I understand it you would have needed a copy of the birth certificate, I’m not sure what else? Did you show the stuff previously quoted above to the CBP guy at entry?
    I’d suggest you make an infopass and see if there is a way you can still automatically get the green card for the baby. If indeed the baby is still on an ESTA and you need to petition it’s going to be tricky because the baby can only stay 90 days on an ESTA.
  11. newacct

    newacct Well-Known Member

    That's not good. Even if you showed ESTA to the airline, you should have tried to have your child enter as an immigrant at the POE (which is what really matters). You don't need any "paperwork" for the baby -- the baby's birth certificate and parent's green card is sufficient. Maybe they were thinking about normal immigrants who come on an immigrant visa and carry a "packet" from the consulate, but that is not the case with your child, who doesn't need an immigrant visa or to have done anything at a consulate in order to enter the US as an immigrant.

    Try to contact CBP to see if they will correct it, since your child was clearly eligible to enter as an immigrant at the time they entered, and you had all the materials you needed at the time you entered for the child to enter as an immigrant; they just didn't understand.

    If they will not correct it, you may have missed the opportunity to have your child immigrate easily, since the rule that they are exempt from immigrant visa only applies if it's the first entry. In that case, you would have to petition them, but an unmarried under-21 child of a permanent resident is in the F2A category, which has a wait for visa numbers of around 2 years (meaning, only about 2 years after filing I-130, do they become eligible to immigrate, either via AOS in the US, or Consular Processing abroad). But your child's VWP status only lasts 90 days. Furthermore, since the child is not in the Immediate Relative category (spouse, unmarried under-21 child, or parent of US citizen), the child is not eligible for AOS if out of status, so even if the child stays in the US, they still cannot do AOS.

    Probably the best option in that case would be to petition the child to do Consular Processing in France, but have the child stay illegally in the US until the time for their interview in France about 2 years later, and then leave to go to France to do the interview and associated tasks at the consulate in France, and come back to the US quickly once they have the immigrant visa. They won't trigger a ban upon leaving the US because one does not accrue "unlawful presence" for the purposes of that ban while under 18. This is still not ideal of course because they are at risk for deportation during this time that they are overstaying in the US.
  12. Britsimon

    Britsimon Super Moderator

    When airlines, and even border parole officers do things wrong, it is very important to stand your ground and insist they handle the case appropriately. You really should have stood your ground at immigration. You didn't need to have paperwork and if you had insisted on being handled correctly the misinformed officer would have had to see a supervisor to get guidance.

    Now, I think you should try and resolve this as Susie noted, BUT perhaps contact a lawyer anyway.
  13. Sm1smom

    Sm1smom Super Moderator

    I do not think the IO that processed them was wrong, or misinformed. I believe that IO was right in admitting the baby as a tourist, since the parents brought the child in on ESTA - the mistake was on their part, not that of CBP. They should never have applied for ESTA for the baby in the first place.
  14. Sm1smom

    Sm1smom Super Moderator

    You made a big mistake in applying for an ESTA for the baby. You son would have been processed at the POE for a GC if he wasn’t brought in on a visa waiver.
  15. SusieQQQ

    SusieQQQ Well-Known Member

    I think this underscores a lesson we try to impart a lot - if anything is even slightly out of the ordinary, stand your ground when someone thinks you're wrong, and bring documentation to back up your stance:
    - transport letter for the baby in this case
    - if traveling on temporary I551 copy of the manual page that says this is valid for entry - another factor that many people have reported problems with airlines both cases insist on seeing superiors at the airport if necessary and make sure you’ve allowed for extra time. Gate agents, especially of airlines from countries that don’t have lots of immigrants to the US, simply may not have come across your situation before. If necessary insist they get the manual for carriers published by CBP (and know where to find what you need)
    - again at P.O.E, you never know you might meet some newbie behind the counter, if you know you are right (1) best to have the documentation (we referred to the relevant info previously in this thread) (2) again, (politely) insist on a supervisor or ask to be sent to secondary processing.

    All too late for OP unfortunately but maybe can help someone else.
  16. SusieQQQ

    SusieQQQ Well-Known Member

    There are also financial and other implications of this option - no SSN or legal status for the child, will make it difficult for a whole range of things from medical insurance to claiming the child deduction for tax.
  17. Sm1smom

    Sm1smom Super Moderator

    Additional documentation people in such situations should have with them:

    - A print out of 9 FAM 201.2- IV TRAVEL WITHOUT A VISA AND/OR PASSPORT – OVERVIEW with the following section bookmarked/highlighted for easy reference:

    Certain Alien Children Not Required to Obtain Visas
    (a) The child born after the issuance of a visa to a parent, or a child under two years of age born of a Lawful Permanent Resident alien mother during a temporary visit abroad, is not required to have a visa if the child is:

    (i) Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent’s immigrant visa; or

    (ii) Born during the lawful permanent resident mother’s temporary visit abroad provided that:

    · Admission is within 2 years of birth; and

    · Either accompanying parent is applying for readmission upon first return after the birth of the child.

    This is very important especially when the embassy is not willing to issue a transportation letter - this has been known to happen.

    - Contact (preferably via email) the airline you plan on traveling with ahead of time to find out their policy. It is policy for the people at the administrative end to know of this policy while the gate agent is completely clueless. In this case, you present your communications with the airline to the gate agent.
  18. Grand

    Grand New Member

    Thank you everyone for your valuable informations and your help, I really appreciate it.

    You are so right when you say that I should have standed on my ground. As I was moving to a new "field" I wasn't sure enough...

    I forgot to mentionne that we missed our first flight (AirFrance didn't want us to go onboard). But we negociated and they put us in a new flight (without paying extra).
    When I think that the Air Fr women told us we were lucky not to pay again for the flight as we were in fault because of the Esta missing...

    Anyway, if it can help : I first called the USCIS here and they told me we have to do an "adjustment of status".

    They gave me the number of a deferred inspection site which I called : they told me to come to their office (we have to go back to Miami) with our documents and they will examine our case. We'll see.

    Of course I will let you know.

    Thank you so much SusieQQQ, Sm1smom, Simon and newacct for being here, you can't imagine how helpful you are :)
  19. EURO2014

    EURO2014 Well-Known Member

    As stated earlier, applying for ESTA for the baby and using it for airline transportation/US immigration purposes unfortunately was the wrong course of action. I would strongly advise to work with an experienced immigration lawyer in trying to rectify the situation while the baby is with you in the US, i.e. over the 90 days after entry covered by ESTA - if USCIS responds with an extension of status while seeking to correct immigration status for the child, then this will suggest that the situation can be resolved. Otherwise you presumably will have to return to France with the child before ESTA legal status expiration. Work through an immigration lawyer and get the process started asap. Best of luck!
  20. SusieQQQ

    SusieQQQ Well-Known Member

    Apart from anything else I think you should very strongly complain to Air France about first refusing to let you board and then making you get an ESTA, apart from all the hassle you will now spend a couple thousand dollars on the petition and maybe lawyers fees too on something that shouldn’t have cost you anything.
    The least they can do is give you free return tickets for a possible need to return to france to sort it out.

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