kelzm

Hello all,

I'm planning ahead (way ahead), in an effort to make things as easy as possible for my son to choose to be here in the US with me. Advice needed!

My son is 15, turning 16 in December, currently in New Zealand. My husband (US citizen) is about to put through the I-130 application for him. However, he wants to finish High School in New Zealand. He has a full scholarship to a very good boarding school that he has been attending for 5 years, and it makes the most sense to let him finish his education there. If he gets permanent residency will he lose it due to returning to NZ every term and spending only school holidays here in the US with me.

If I apply for citizenship when he is 17 (and it is granted before he turns 18) will he automatically get US citizenship.

1 - Even if he is not in the US physically at the time of the oath due to attending school.
2 - If he has to be here physically is it enough to bring him over for the oath ceremony and then send him back for schooling? This will be his final year of school and if the process does manage to fit in with our timeframe he will likely be coming up to his final exams.

I know that a lot of this is very subjective, but any advice or comments on the above situations are welcome. I'm trying to decide if it's worth putting either or both of these in to action or if we should wait till he's finished high school and hope I can coerce him to attending college somewhere close to me.

ian-mstm

No, he won't. Attending school outside the US is one of the valid reasons for him to be outside the US for an extended period of time.


If he is a PR, under age 18, and in the custody of a USC parent - yes.


He must return to the US prior to his 18th birthday... just long enough to become a USC, apply and get a US passport and leave.


This is the tricky bit. A US citizen must travel on a US passport. If you live in (or choose to travel to) an area where you can get a passport in one day - that would work for you.


Worst case scenario - he remains a PR and he can apply for naturalization on his own after he's 18 and has been a PR for 5 years.

Ian

kelzm

Ian, thanks for answering so quickly! It seems like moving forward now with the I-130 is likely a good idea, and the citizenship is possible, so worth a shot, I think.

I'm not far from San Francisco so the 1 day passport might be doable, if it came to that.

As you say, if not he'll just have to apply later on his own behalf.

Rete

Hope to clarify this for you:

Your son needs to a PR in order to derive US Citizenship from you if you become a USC before his 18th birthday.

So continue with the I-130 now. Once he has interviewed at the US Consulate in NZ, he can plan a trip to visit you in the US and activate his Immediate Relative Visa. At that point he should file the I-131 for a returning resident's visa and once he has had his biometrics completed, he can return to NZ and resume his schooling. The I-131 will show that he has not abandoned his PR status (being out of the country for 6 mos and up to 2 years (which is the length of the approved I-131) will help show that he hasn't don't so).

Then when you become a US Citizen before he is 18 he will be a USC as well. In fact, he can then apply at the US Consulate in NZ for his US Passport.

Does this help clarify things a bit for you?

kelzm

Rete, forgive me for sounding like a parrot, I just want to check that I have this right. After we have been through the I-130 process and my son has entered the US to become a PR.

- We file I-131 for my son
- He returns back to NZ for school
- I naturalize before he is 18
- My son will become a US citizen also, even if he is not physically present at the time I naturalize

The last point is the big one for me as timing will be delicate given that he will be coming up to his final exams. So if he can remain in NZ, but still gain citizenship through me naturalizing I'd feel a lot more comfortable than having to whisk him over here in the midst of his study.

ian-mstm

I don't know if this is true, but Rete thinks it is (and, to be fair, her assessment does sound reasonable to me)... s you might need to research this further.

At any rate, once your son becomes a US citizen, he will need a US passport to enter the US - he can't come back without one.

Ian

Rete

The child of a permanent resident who naturalizes does not get automatic US Citizenship unless they are a PR themselves.

For example, say your son remains in school in the NZ, you have filed his I-130 for him, it has been approved by the US Consulate there, but he is unable to return to the US at that time (he will have a few months to come to the US to activate that visa). In the interim, you had filed for your naturalization and between the time of his interview and approval at the US Consulate and his entry into the US to active the visa, your approval for naturalization and swearing in ceremony occurs. The moment your son enters the US he would become a PR and USC at the same time.

Now the issue is:

In order to derive US Citizenship from the naturalizing parent and he must be under the age of 18 and have Permanent Resident status in order to derive US Citizenship from the naturalized parent.

I've not found a statute/regulation that states that he must be inside of the US in order to derive US Citizenship from the naturalizing person. I have only found that those two conditions above must be meet. Remember PR status does not mean that he has to physically be inside of the US. You can still maintain PR status while outside of the US as long as you have not abandoned your residency here and being that you are his parent, his home is naturally with you, you have full custody of him and he has obtained an I-131 returning resident permit which allows him to remain outside of the US for up to 2 years (in this case to attend school), he has fulfilled that requirement.

In your situation, he would have the PR status and be attending school abroad. As a PR (in good standing), I reason that he would be a US Citizen upon your naturalization and not have to wait until the next time he enters the US to derive that benefit.

As with all things dealing with immigration that are a step away from the norm, you should consult with a professional.

kelzm

Thanks Rete.

These answers help with confirming what steps I want to take. We will go ahead with the I-130 now. I'm currently spending a fortune bringing him over for every vacation as it is, so there's no issue with getting him here to activate his PR. I'll just need to try and manage my timing somewhat so that he's here for a longer vacation that first trip over so that we can get the I-131 sorted out.

Hopefully the rest will work out as well, but I will look at consulting a professional closer to naturalization time to help with that process.

Rete

You're very welcome.