Check this out...got it from Oh Law firm's web site...thought might provide more details to you... My impression is it shouldn't be a problem having a baby in india and bringing back to the US. It will be granted immigrant visa based on follow-to-join clause of INS regulation.
As I-485 track is expected to take a horrible delay (as affected by the August priority dates) and subject to increasing risk involving loss of the petitioned job, more and more people are thinking about IV consular processing at the home country (in some situations, even taking a greater risk). Without doubt, by the time they go to the consulate for IV interview, a number of women applicants will be pregnant. This reporter wishes that the following information gives some help to such women on the issue of the immigrant status of a baby born after the immigrant visa is issued to the mother.
Upon presentation of the baby's birth certificate, INS District Director will issue an immigrant visa waiver and prepare Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, which is the INS internal record to grant a lawful permanent resident status.
The same will happen if a green-card woman travels outside the U.S. and during the temporary trip, a baby is delivered outside the U.S.
In order to get this benefit, the following conditions must be satisfied:
1: The trip to the U.S. must be made while the baby's parent's immigrant visa is valid;
2: The baby must accompany such parent.
For a child who was born while the green-card mother was travelling outside the U.S., the following additional conditions must be satisfied:
3: The accompanying parent must be a returning permanent resident;
4: The parent and his/her baby must return to the U.S. within 2 years of birth;
5: The accompanying parent's return trip to the U.S. must be "the first" return trip to the U.S. after the birth of the baby. (This is very important to remember. Such parents should not make trips alone without the baby!); and
6. The accompanying parent must be admissible to the U.S., which means that the parent is not removable (excludable/deportable) under the immigration laws.
Failure to follow these rules will result in a nightmare in that the parent will be forced to file the 2nd Preference Family Petition and pending priority dates, the parents and child may have to be physically separated!
The second situation can be utilized by parents who do not wish that their child be born in the U.S. and automatically become a U.S.citizen, for certain emotional reasons. However, please bear in mind that if you are ambitious and you want to bring up your child to become a President of the United States, you will have to give birth to such child in the United States. That is the Constitutional mandate! Who knows, this country is rapidly undergoing a change and before we reach 21st Century, over 50% of the total population are forecasted to be so-called "Non-Whites." Who elects a President?
Please also remember that consular processing does not fit well for certain people, particularly those who have already used Advance Parole or EAD for another employer and who cannot maintain a nonimmigrant status while they wait for completion of consular processing. People keep forgetting the following two issues: (1) Once AP is "used" or EAD is "used" for another employer, such alien loses a nonimmigrant status and the alien can remain in the U.S. lawfully only "pending" I-485 determination and "no other grounds" and continue employment on "EAD" and "no other grounds." Thus once the Service Center terminates I-485 proceeding to allow the alien's consular processing, there is no provision in the immigration statutes and regulations that permit INS to issue such AP and EAD! (2) This problem will be particularly deadly for those who fit the foregoing descriptions or whose H-1B or L visa status will face the limit in the near future, and the priority dates move backward, absolutely requiring for continuing stay in the U.S. either I-485 "pending" or valid H, L, or other NIV until the moment when the Service Center "actually" approves I-485.
Every situation is different and the foregoing information cannot be relied on without the legal advice of a competent legal counsel. This firm will not be responsible for any consequences flowing from an act in reliance on this site. The foregoing infromation should never be taken as a legal advice for his/her situation. Important to remember.Back to Top
