Newborn (abroad) of LPR father, USC mother: Visa waiver possible?

A

abumiqdad

Member
Hi.

A question here. I am reading the guide here (what what had been shared regarding the birth abroad for LPR).

https://fam.state.gov/fam/09FAM/09FAM020102.html



If the father is LPR for a number of years, and the mother is a natural born USC (but cannot pass the citizenship automatically), and the child was born abroad (after the LPR father became a LPR, and before the first return to the USA of the LPR father since the baby was born), would the visa waiver still possible? The language used in the guideline specifically mentioned LPR mother.


9 FAM 201.2-3 IMMIGRANT TRAVEL WITHOUT A VISA

(CT:VISA-364; 05-25-2017)

(3) 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.

(b) Requiring Reentry Document of Child’s Parent: The provisions of 9 FAM 201.2-3 paragraph (3)(a) above apply only if the alien parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), or an SB-1 visa. 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.

(c) Evidence of Parent-Child Relationship: To facilitate the admission of children under the provisions of 9 FAM 201.2-3 paragraph (3)(a) above consular officers should instruct parents to have with them documentary evidence of the parent-child relationship.



Does this mean for the above case, since the language used in the guide specifically says it is meant only for LPR mother, the child must be petitioned? Or is there a different interpretation (where LPR mother and father are treated the same - and thus the newborn will still get a visa waiver - and the LPR father can accompany the newborn to the USA)?
 
abumiqdad said:
Hi.

A question here. I am reading the guide here (what what had been shared regarding the birth abroad for LPR).
https://fam.state.gov/fam/09FAM/09FAM020102.html
https://fam.state.gov/fam/09FAM/09FAM020102.html



If the father is LPR for a number of years, and the mother is a natural born USC (but cannot pass the citizenship automatically), and the child was born abroad (after the LPR father became a LPR, and before the first return to the USA of the LPR father since the baby was born), would the visa waiver still possible? The language used in the guideline specifically mentioned LPR mother.


9 FAM 201.2-3 IMMIGRANT TRAVEL WITHOUT A VISA

(CT:VISA-364; 05-25-2017)

(3) 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.

(b) Requiring Reentry Document of Child’s Parent: The provisions of 9 FAM 201.2-3 paragraph (3)(a) above apply only if the alien parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), or an SB-1 visa. 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.

(c) Evidence of Parent-Child Relationship: To facilitate the admission of children under the provisions of 9 FAM 201.2-3 paragraph (3)(a) above consular officers should instruct parents to have with them documentary evidence of the parent-child relationship.



Does this mean for the above case, since the language used in the guide specifically says it is meant only for LPR mother, the child must be petitioned? Or is there a different interpretation (where LPR mother and father are treated the same - and thus the newborn will still get a visa waiver - and the LPR father can accompany the newborn to the USA)?
Click to expand...

I replied on another site, but here it is for reference:

For a baby born after getting permanent residency, it's definitely the mother who must be a permanent resident; the father being a permanent resident doesn't count. However, given that the mother is a permanent resident, either parent (if they are permanent residents) can bring the child back on that parent's first return after the child's birth.

However, the interesting thing is that if you look at the underlying regulation, it actually says if the mother is an LPR or US national (and all US citizens are US nationals; it doesn't say "non-citizen national").

8 CFR 211.1(b)(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.
Click to expand...

Taken literally, since your wife is a US citizen (and therefore US national), if she was on a temporary visit abroad when she gave birth, and you (a permanent resident) are returning with the baby within 2 years of birth, on your first return to the US after the birth, this seems to be saying that the baby can enter without an immigrant visa too.

However, I have never seen this section applied to a child born to a US citizen mother, and not only the FAM, but all the other government sources I've seen on this, from USCIS, CBP, consulates, etc. all seem to only mention children born to a US permanent resident mother. So I am not sure what are your chances of success with this logic.

On the other hand, it should be pretty straightforward for your wife to petition the baby to immigrate if this doesn't work.
 
newacct said:
Taken literally, since your wife is a US citizen (and therefore US national), if she was on a temporary visit abroad when she gave birth, and you (a permanent resident) are returning with the baby within 2 years of birth, on your first return to the US after the birth, this seems to be saying that the baby can enter without an immigrant visa too.

On the other hand, it should be pretty straightforward for your wife to petition the baby to immigrate if this doesn't work.
Click to expand...

The wife however isn’t on a temporary visit abroad. She has practically lived abroad her entire life which is why she’s unable to pass on US citizenship to the child in the first place.
 
Sm1smom said:
The wife however isn’t on a temporary visit abroad. She has practically lived abroad her entire life which is why she’s unable to pass on US citizenship to the child in the first place.
Click to expand...

yeah, i figured that too, though if the guidance is applicable to LPR father, i would be considered as visiting abroad temporarily right now (with a re-entry permit).

But slim chance it seemed. I will ask the embassy what their take on this.
 
abumiqdad said:
yeah, i figured that too, though if the guidance is applicable to LPR father, i would be considered as visiting abroad temporarily right now (with a re-entry permit).

But slim chance it seemed. I will ask the embassy what their take on this.
Click to expand...

Well, technically (though hopefully not in practice) if the mother’s status is not considered, an LPR father visiting abroad could father many children while doing so. This may be a reason why the father is left out the rules.
 
SusieQQQ said:
Well, technically (though hopefully not in practice) if the mother’s status is not considered, an LPR father visiting abroad could father many children while doing so. This may be a reason why the father is left out the rules.
Click to expand...

that is true, but same with USC father when visiting anywhere (though they do have a specific act about passing the citizenship for child of USC [father particularly]).
 
abumiqdad said:
that is true, but same with USC father when visiting anywhere (though they do have a specific act about passing the citizenship for child of USC [father particularly]).
Click to expand...

But citizens have more rights than LPRs, period. That’s not really an argument.
You could have an LPR father spawning a hundred green cards and then abandoning his own.
 
You must log in or register to reply here.
Top