Pregnant wife in India in Green Card, unable to travel. Status of the Child??? Help

S

sailakfan

Registered Users (C)
Hello Everybody,
I have a strange situation. We are Permanent Residents and have a six year old daughter born in US. I just turned eligible to apply for citizenship and my wife's condition will not permit her to travel back to the US. I am applying for my Citizenship tommorrow at the Dallas center. Our baby is due in mid of July and in case if I am not a Citizen by then, what happens to the status of the newborn? Once I become Citizen does the baby automatically becomes the Citizen of US. Can somebody please advise?
Thank you in advance.
sailakfan
 
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Check out this site for more information:

http://www.foreignborn.com/visas_imm/start_here/4birth_abroad.htm

Here's one part that would be of interest:

Legal Permanent Resident Parents

A child born abroad of legal permanent resident parents may enter the U.S. without a visa provided the child is accompanied by a parent upon that parent's initial return to the U.S. within two years of the child's birth with documentation showing the parent-child relationship. If the child is not brought back to the U.S. when the parents initially enter the U.S. (following the birth) within this time period, the child must obtain an immigrant visa to enter the U.S. In this case, the legal permanent resident parent(s) must file an immigrant visa petition with the U.S. Citizenship and Immigration Services (see Bringing My Children to Live in the U.S.).

If you are currently outside the U.S., contact the nearest U.S. Consulate or Embassy for more information. For advice in the U.S. on your specific situation, call the Office of Overseas Citizens Services at 202-647-5226, or the Visa Services office at 202-663-1225. You may also contact your nearest USCIS office, or the USCIS toll-free information service at 1-800-375-5283. If you would like to apply for an immigrant visa for your child, see Bringing My Children to Live in the U.S.
 
The baby certainly won't be born American if it is born abroad and you are not a citizen. However, under the current rules, if it is your child, if it had legal resident status, and you become an American citizen, the baby will become a citizen when you take the oath.

If you become a citizen before the baby is born, it probably will not be born American either (if both parents are citizens and the baby is born abroad, then the baby is born American, if only one is, then the rules are very complicated (I think they are detailed in the "Dual Citizenship FAQ"))

Look up the N-600 threads for more information.

Also download the N-600 form. The instructions have a reasonbly clear description of the rules about children automagically becoming American when their parents take the oath. You probably want to have a good grasp of these rules (and the rules discussed in the previous section) as you plan your life over the coming months.

If you are actually in the Dallas area, I was refered to a good (well he seemed good, I never actually engaged him, only consulted with him) immigration lawyer. Ping me privately and I'll send him your name (but, he is definitely *not* cheap).
 
Thank you

Happygal and Flydog,
Thank you for you quick response and really appreciate it. I called 1-800-375-5283 and they were really helpul. The lady I spoke to said if we are Permanent Residents when the baby is born, we have to apply for Form I-130 and it will be placed in the priority date queue and once we get our citizenships then we can upgrade the petition and bring the baby as a Permanent Resident. So I am going to go ahead and apply for the Citizenship. Flydog I do live in the DFW area and will PM you.
Thank you
sailakfan
 
It really makes me mad that they do not even know their own rules and give you a terribly wrong advice. You do not need any visa processing. I was in the same situation so please read on.

From their own rules:
From 8 CFR Sec. 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. (2) For an alien described in paragraph (b)(1) of this section, recordation of the child's entry shall be on Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence. The carrier of such alien shall not be liable for a fine pursuant to section 273 of the Act."

At the border please INSIST on the following (I had to advise the immigration officer on what to do because he has never done it before and had no idea!!):

Processing Initial Entry of a Child of LPR

If a child is making his/her first entry into the United States as a lawful permanent resident (LPR), the CBP officer must complete a Form I-181, Memorandum of Creation of Record of Lawful Permanent Residence, for the child. A child is permitted into the U.S. without an immigrant visa as a new immigrant in certain, limited situations. This visa exemption arises if the child is born to an accompanying parent after issuance of an immigrant visa to the parent but before the parent's initial admission to the U.S. (Essentially, the child is born abroad after the parent/s obtain their immigrant visas in their passports, but before they come into the U.S. as immigrants.) The visa exemption also exists for children born abroad if they are under 2 years old and were born during a lawful permanent resident mother's temporary absence from the U.S. In order to qualify for this benefit, the child must be accompanied by the parent upon the first return of the parent to the U.S. following the birth of the child. The parent must be able to establish evidence of the parentage of the child and the parent's own evidence of being an LPR. The child will get a temporary I-551 stamp in the passport upon entry to the U.S. The CBP officer should also take a copy of the birth certificate to submit with the Form I-89 and Form I-181 to request the creation of the physical "green card" for the child. Good luck!
 
Sailkfan,

I know for sure (as One of my friend was done) if you are still with GC, you can bring your baby when travelled with her mother (both should be the first visit after baby born) to USA, at port of entry baby will get GC status.

One of my friend wife gave birth to baby at home country (both wife and husband have GC). She came to USA along with baby, at port of entry baby got the GC status (I believe you may have to apply for the actual card later).

I am not sure what will haapen if you become USC.

My be you can wait not to apply for USC till they come here and can apply later.

--SRK
 
If you naturalize after the baby enters the US, and the baby gets an I-551 (i.e. LPR status) on entry, the baby becomes a USC as you finish the oath.

If you naturalize before the baby comes home, and the baby comes home with your LPR wife and gets an I-551 in the process, he/she will instantly transform from an LPR to a USC once she gets accepted as an LPR (I think - read up on section 320 of the immigration act and re-read the instructions for the N-600).
 
In our case, my wife filled out the paperwork for our foreign-born child at the POE, and the greencard arrived in about three weeks.
 
Thank you very much everybody. Cleared all of my unknowns.

Marta,

Thank you so much for the detailed explanation and to the citation of the rules. I even called my lawyer who did my LPR and he too did not know and said they need to do research and will bill me hourly. I really appreciate it and this clears lot of things me and my wife were concerned. Also we will be prepared at POE.

SRK_CLT,
Thank you for your response. Glad to know people have done this before with no problem. I was concerned and yesterday I went ahead and sent my N-400 to the Dallas TSC. But still my wife will be an LPR and apply for the Citizenship once she returns. The baby can then become USC either along with me or with my wife. Right?

Flydog,
Thank you and that was the reason I sent my N-400 in. By the way I saw you service all over the board and keep up the good work.

Huracan,
Thank you as well.

Everybody have a great day.

sailakfan
 
Thank you Canon18

Canon18,
Thanks for the information. I started the reply before you and took a while to submit.
sailakfan
 
If I were you, I'd continue researching everything so that you know the rules "chapter and verse". Bring printed copies of the acts and the regulations when you hit the POE.

You need to make sure you don't hit some weird edge case (for example, you get naturalized before the baby comes home, and he/she accompanies you, rather than your wife - you are no longer an LPR, does your kid get instant LPR-ness, or, does he get somehow bounced at the border?).

Good luck.
 
Documentation of United States Citizens Born Abroad Who Acquire Citizenship At Birth
The birth of a child abroad to U.S. citizen parent(s) should be reported as soon as possible to the nearest American consular office for the purpose of establishing an official record of the child’s claim to U.S. citizenship at birth. The official record is in the form of a Consular Report of Birth Abroad of a Citizen of the United States of America. This document, referred to as the Consular Report of Birth or FS-240, is considered a basic United States citizenship document. An original FS-240 is furnished to the parent(s) at the time the registration is approved.

REPORTING THE BIRTH
A Consular Report of Birth can be prepared only at an American consular office overseas while the child is under the age of 18. Usually, in order to establish the child’s citizenship under the appropriate provisions of U.S. law, the following documents must be submitted:

(1) an official record of the child’s foreign birth;
(2) evidence of the parent(s)’ U.S. citizenship (e.g., a certified birth certificate, current U.S.
passport, or Certificate of Naturalization or Citizenship);
(3) evidence of the parents’ marriage, if applicable; and
(4) affidavits of parent(s)’ residence and physical presence in the United States.

Read more:

http://travel.state.gov/family/family_issues/birth/birth_593.html

The way I see it, your newborn will be OK either way - if you are still an LPR when he/she is born, he/she gets an LPR status at the border. If you are a US citizen by the time of his/her birth, you will welcome a new US citizen into the world. :)
 
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If only one parent is a USC at the time of a child's birth abroad, the child may not be born a USC.

Check out http://www.richw.org/dualcit/faq.html#borndual. I don't know if "residence" in the US before one is a USC counts towards the "residence" requirment in the statute. That's something I'd be very interested in finding out. My 17 year old daughter has been a "resident" of the US for more than a decade, but a USC only since last June. She may be going outside the US to University this fall.

I've casually mentioned this to two different lawyers (i.e. I wasn't paying them for their services at the time). The both answered something like "that's an interesting question".
 
Thank you Marta and Flydog! Been away for a while.

Marta,
Thank you for the info and I am glad to know either way will not have a problem.

Flydog,
When I called 800-375-5283 the other day, the lady I spoke to said residency does count even if you are not a USC same way as IRS calculates residency. But I urge everyone who is reading this to confirm it legally before assuming anything. Thank you FlyDog.

sailakfan
 
sailakfan said:
When I called 800-375-5283 the other day, the lady I spoke to said residency does count even if you are not a USC same way as IRS calculates residency. But I urge everyone who is reading this to confirm it legally before assuming anything.
Click to expand...

Beware - there have been several cases reported here where advice from people staffing the 800 number has directly conflicted with known rules & regulations. Don't know if this is true here also, but it seems they are not always well informed!
 
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