toluani

Hello Brit Expats,

Another question from me.

My wife is a green card holder and currently holds a re entry permit which has allowed her remain outside the US for nearly 2 years during which time we had a baby in the UK.

According to 9 FAM 42.1 N1.1, the baby can travel to the US without a visa (or in this case ESTA) and will be granted a green card at point of entry if the conditions are met.

We will be ravelling with BA and my concern is a situation where the airline staff are not aware of the rule and refuse the baby boarding.

Is there anyone who has taken a baby to the US based on the 9 FAM 42.1 rules and did you have any issues with the airlines?

According to 9 FAM 42.1 N1.1, contained in the “U.S. Department of State Foreign Affairs Manual Volume 9-Visas.” In order for a Permanent Resident mother to obtain green card status for their child born abroad, three requirements must be met:

1. The mother must be returning to the U.S. as a Permanent Resident.
2. The mother must bring the child with her on her first trip back to the U.S. after the birth.
3. The entry occurs before the child turns two years of age.

ian-mstm

So long as the child has an approved ESTA, I don't see why getting on the plane would be an issue.

Ian

toluani

Hi Ian,

Thanks once again for your help

We were going to get the baby ESTA authorisation, but I read the below which made me worried that does this mean she wouldn't be issued the temporary residence permit as this means changing status?

I may be over-analysing things but it makes me worried and wonder if this means we just go to airport with the 9 FAM 42.1 information printed.

Before using the Visa Waiver Program, be aware of the following conditions that apply and carefully consider your options:

• If you are admitted to the United States under the Visa Waiver Program, you may not change or extend your non-immigrant status.

S Folinsky

I understand that the US Embassy can issue a transportation letter.

It appears that an appointment can be made on line: http://london.usembassy.gov/dhs/cbp/...t_request.html

rpjs

Just because the baby has an ESTA doesn't mean it has to be admitted under the VWP. When I immigrated to the US my ESTA was still valid but I was admitted as an immigrant.

ian-mstm

She won't be changing status. ESTA gets her on the plane - that's the purpose it serves. When she arrives in the US, 9 FAM 42.1 kicks in... and she will be admitted as a US permanent resident.

Ian

S Folinsky

I do not disagree with what you posted. That said, use of the ESTA requires a round trip ticket. Also, the FAM provision requires that the child accompany mum who will be using her Green Card. So, nothing illegal about using the ESTA, but I see that it might not be a smooth as may appear.

toluani

Thank's for all your input guys, really appreciate.

It looks like ESTA would have be the best option for her to leave the UK and be admitted into the US as an immigrant, but another snag we're flying one way using BA avios as it is a lot cheaper than return without avios.

I think we will try the transportation letter option and at least we can get to speak to someone at the US embassy. If that fails we will get a return ticket for the baby so she can use ESTA.

I'll keep you posted.

Steve_

I think the answer is, get the letter and show up early at the airport. There are CBP people at LHR, so worst-case scenario it has to be kicked upstairs to someone who knows what they're looking at.

I wouldn't try using ESTA because it's for people with non-immigrant intent, that's just going to muddle the picture further. It expressly says on the website that your intent is for temporary travel for business or pleasure.

If you're really paranoid about it, you could go via Dublin and use pre-clearance.

scrubbedexpat099

The Transportation Letter is the normal option.

toluani

Thanks to all who contributed here. we tried to apply for a transportation letter, and were told we do not need one. We will print out the email to show at the airport in case we have any issues with BA.

I have copied text from the email to help anyone else who is in same situation:

"Child Born abroad to a Lawful Permanent Resident – May be boarded if the child is born to a mother who is a Lawful Permanent Resident during a temporary visit abroad, and if the child and parent are making their first return trip to the United States within two years of the child’s birth.

So if the mother has not remained outside the United States longer than 365 days, she can bring the child into the United States The mother will need to present at the checkin at the airport the following documentation:
Mother’s foreign passport
Mother’s lawful permanent resident card
Child’s foreign passport
Child’s original long version birth certificate showing the names of both parents.
No other documentation is required to have the child boarded – an ESTA should not be filed for child.
At the port of entry in the United States, the mother should advise the immigration officer that she wishes to have the child processed for an NA3 lawful permanent residency (child born aborad to LPR)".

gumer

Hi! Will you please let us know if you were able to board the baby on the plane without any documentation? I'm in the same boat and want to make sure we board the plane Thanks!

toluani

Hey, so we applied for a transportation letter from the US embassy in London which resulted in an email exchange confirming we didn't require a transportation letter.


We printed this email exchange out with the 9 FAM 42.1 N1.1 law which we took to the airport.


We flew BA and naturally the check in agents were not familiar with the law and after a lot of back and forth they called a US immigration personnel based at Heathrow who confirmed the law and we were allowed to board.


My advice will be to get to the airport early because it may take some time before the airline are convinced you can be allowed to board as your baby cannot have ESTA. Even after the US official confirmed the baby could board, the check in agent had trouble figuring out how to board the baby on the system without ESTA or visa and that took a while and involved a few people as they do not do this often.


Docs you need:
- baby passport
- baby birth certificate
- mother must be present with her normal travel docs
- If you get the email exchange from the embassy print that out
- 9 FAM 42.1 N1.1 text
- passport photo for baby's permanent green card which will be posted about a month later


Goodluck


Btw when you get to the US it is a lot smoother, but still takes a few hours. You will be taken to the waiting area and after waiting a few hours called for the documents above and asked for some information, wait again and then given a temporary GC for the baby.

toluani

See below email we got from US Embassy when we contacted them about the transportation letter. This is the email we printed along with the law.


Hello there,

First and foremost …..

“Lawful permanent residents can apply for admission into the United States provided they have not relinquished their residency in the United States AND have not remained outside the United States for over 365 days. In determining your eligibility to reenter the United States as a lawful permanent resident, the Customs, Border Protection (CBP) officer at the port of entry in the United States can look at your history of travel and determine that you have been actually residing outside the United States which could jeopardize your status”

Child Born abroad to a Lawful Permanent Resident – May be boarded if the child is born to a mother who is a Lawful Permanent Resident during a temporary visit abroad, and if the child and parent are making their first return trip to the United States within two years of the child’s birth.

• So if the mother has not remained outside the United States longer than 365 days, she can bring the child into the United States The mother will need to present at the checkin at the airport the following documentation:
  • Mother’s foreign passport
  • Mother’s lawful permanent resident card
  • Child’s foreign passport
  • Child’s original long version birth certificate showing the names of both parents.
• No other documentation is required to have the child boarded – an ESTA should not be filed for child.
• At the port of entry in the United States, the mother should advise the immigration officer that she wishes to have the child processed for an NA3 lawful permanent residency (child born abroad to LPR).
  

Overseas Adjudication Specialist (OAS)
USCIS Field Office – London
Embassy of the United States of America
24 Grosvenor Square
London W1K 6AH

dudeinbritishexpat

Thank you everybody for providing the information above. This is one of the few posts we found on the internet specifically pertaining to children of green card holders born abroad.

We are French citizens and could only get confusing answers from the embassy in Paris. But we had read the posts above as well as information from the USCIS website. Our baby was born in France while we were abroad (we are green card holders).

We took an Air France flight to the US. The check-in staff called the US marshal stationed at the airport to confirm that we could board the flight. He was aware that an ESTA was not needed and the baby would be processed in the US. Unfortunately the check-in computer system does not allow boarding without an ESTA or a visa number. He immediately called DC who advised him to key in a reference number instead (that he made up on the spot and kept in his records) so that the boarding pass could be printed. All in all it took us a good 3 hours to get through check in... so be there in advance.

Once in the US. Going through immigration was a formality. USCIS officers only needed a birth certificate in English, passport and photos. Have some US photos handy as you don't want to wake up baby after an intercontinental flight. It took about an hour for the NA3 baby visa to be issued.

To summarise:
1. your baby does not need an ESTA, but you do need the original birth certificate in English (the EU multi lingual certificate is fine, otherwise you will need a translation from a certified translator)
2. your baby will be "processed" at the port of entry in the US for an NA3 visa (as a so called "NA3 baby").
3. your baby's passport will be stamped upon entry and the green card itself will be mailed later

Hope this helps other parents. Congratulations on your baby!