CaliforniaBride

Hi Contributors

The situation is the baby was born in Belgium this year to a USC mother. She hasn't stayed continually in the US for the required time before his birth for him to automatically be a USC. She is coming back to the US this week with the baby to live. The father is an LPR here.

From what I've read I believe she has to file for his LPR. Is that correct? If so can she just stay here with him until it's approved?

Thanks in advance.

ian-mstm

I'm pretty sure she can't. The baby must have an immigrant visa... and it would be illegal for the child to enter the US as a visitor when the mother clearly intends to stay. Even though the child was born to a USC, the child - at this point in time - has no legal right to be in the US as anything other than a visitor.


Yes - she must file for an immigrant visa on the child's behalf. Once the visa is approved (roughly 8-10 months from now), then the child can enter the US to live. Once the child enters the US, the child will immediately become a US citizen.


She can stay, but the child can only visit.

Ian

civilservant

This is right as far as I know. When the child enters with an immigrant visa at that time they will immediately become a US Citizen, but they cannot just turn up at the border because at the moment they hold no right to enter.

CaliforniaBride

Thanks for you responses. Here's info on what I was referring to....

When Visa Waiver Entrants Can Apply to Adjust Status in the U.S.: USCIS Issues Clarification - Legal Updates - Nolo.com

I'm seeing that she can apply for the baby to adjust. Is that correct?

CaliforniaBride

I digress but *waves* "Hi Ian!!! It's been a while."

Noorah101

To my knowledge, that is only if the child is already inside the USA. Since the child is outside the USA, an Immigrant visa is required. It's illegal to enter as a visitor with the intent to remain and adjust status.

Rene

crg

If the intention is to reside in the US, an immigrant visa needs to be obtained prior to seeking entry. Adjustment is for people within the US who then decide. The visa waiver program is for up to a 90 day visit with no intention to live, work or attend school. That is it. Do you really think they'd have a paperless program that lawfully allows someone to completely skip the Consulate and move to the US forever?

ian-mstm

It's correct only if she has no prior intent to stay in the US which, clearly, is not what's happening here.

If her question is actually, "Can I get away with it?" then the answers are: "Maybe yes, maybe no!" ... and "Do you feel lucky?"

If both parents were US citizens, the child would have been automatically born a US citizen. If the USC parent was able to pass citizenship to the child, then the child would have been automatically born a US citizen. But that's not the case here! The law does not automatically confer citizenship on a child when only one parent is a US citizen or when the USC parent doesn't meet the requirements to pass citizenship to their offspring.

The child has no legal right to stay in the US and can be removed at any time! The fact that one parent is a USC is irrelevant - and (I believe) is not grounds to stop a removal order, even if the child is a minor.

Ian

ian-mstm

Hiya! It has indeed!

Here's a thought... are you gathering information to help this person, or are you just curious from a distance, so to speak?

Ian

zerlesen

Emphasis to be placed on "can apply", here, as in "is entitled to file the application". The application can still then be denied. The link is distinguishing these cases from people who don't even have grounds on which to apply for adjustment of status (eg if I come over on holiday and decide I like the place and want to stay).

sir_eccles

What about qualifying through grandparents citizenship or am I mixing up different processes?

S Folinsky

Interesting thread -- legal consultation is in order. Two reasons -- these can be fact dependent and also attorney client confidentiality.

Furthermore deponent sayeth not.

ian-mstm

You're on the right track - but I think that time is the issue here... not whether or not the child has a claim to US citizenship. The child has claim to USC status if mom files for an immigrant visa on the child's behalf. Or, on the assumption that the child was born a USC because the grandparents qualified, the mother would still need proof of that, and then the child would need an N-600 to be processed, and then the child would need a US passport to enter the US. This all takes time... but we've been told that the mother "is coming back to the US this week with the baby to live."

Ian

crg

It should be noted that the N600K process is only available to kids that plan to enter the US as visitors to attend the interview, take the naturalization oath and then return back to their foreign residence. If the same kid is moving to the US, he or she needs an immigrant visa.

Unlike other N600-ish applications, the child was not born a USC but does an expeditious naturalization.

sir_eccles

Ah thanks for the clarification, good to know I wasn't completely off base. I did forget about the whole "next week" thing though.