kelzm

Heya,

When lurking through the forum I read a post in another thread

Folinskyinla:
Further thought, if Dad naturalizes before son reaches 18 AND son still is an LPR, and son then toodles on back before his 18th birthday as a returning LPR with dad having legal and physical custody -- he instantly becomes a US citizen.

I'm absolutely boggled by this - I had no idea this was possible! I thought I'd done my research and had all those ducks sorted into a nice neat row. Is this easy to arrange? I'll likely be pushing the timeline to beat my sons 18th birthday by the time I gain citizenship but if I do I'd like to take advantage of this option.

While I have your attention, could I confirm my other assumptions are correct and get opinions on my proposed course of action.

My plans:

- Currently applying for CR1.
- Immigrate and apply for son via CR1 route around October 2008.
- Son remains to attend school in NZ.
- Son's CR1 granted approx October 2009. Son visits for Xmas holidays December/January.
- Son (now with PR status) returns to NZ for school. Visits US during holidays.
- Son has option to complete last year or two of High School in the US, or move over permanently to attend college.

The part I'm most uncertain about is him returning to NZ to attend school. Do I need to apply for advance parole for him if he'll be returning to the US every 4 - 6 months? At what point is this going to become questionable ie Ok for 1 year, 2 years, 3?

Any advice appreciated.

ian-mstm

You don't say where you are in the process other than "applying for CR1". Have you actually applied? If so, when? Did you not already include your son on your application? Also, how old is your son now... or, closer to the mark, when does he turn 18?

Ian

Folinskyinla

Hi:

Not quite right on. Child would have immigrate in his own right on an I-130 by step-parent. This will require filing and adjudication of I-130 and later immigrant visa. The immigrant visa will be good for six months, so this allows you to arrange his coming to the US on the immigrant visa. He will NOT need advance parole. It would be a good idea to apply on I-131 for a re-entry permit while he is here.

Attending a school program of definite duration is a classic exception to the time related issues on abandonment. If you naturalize before he is under 18, and he comes to the US before his 18th birthday AND you have legal and physical custody -- he is an instant citizen.

The statute seems to imply that he would still have to file an I-751 even after the naturalization. I'm think [but cannot assure] that a denaturalization proceeding would never be brought in that situation.

kelzm

Sorry, seem to have been a bit vague.

We applied to USCIS in August, currently have an NOA1 dated September 5th and just waiting for NOA2. I'm keeping my fingers crossed that will arrive sometime in the next month.

If everything goes well I am hoping to be approved and immigrate to the US at around October.

We have not yet applied for my son. He just turned 14. I've named him on my own petition of course, but we have not submitted an I-130 to USCIS for him. This is because I want to move first and get a job etc. He attends a boarding school here in New Zealand and is in his second year of high school, I'd like him to do at least 3 years schooling here before immigrating.

Our plan is for my husband to apply for him when I immigrate, so that he receives his visa about a year after me. Then have him visit for holidays while still attending school in New Zealand.

From what I'm reading we've got the right process planned. My understanding is that as the spouse of a US citizen I can naturalize after three years residence. This would mean we'd be cutting it close for beating my son's 18th birthday, but it may be an option we can follow.

Noorah101

If you arrive in the USA in October 2008 (and thus become a PR upon entry), the earliest you could apply for citizenship would be about July 2011. Currently, it is taking between 12 to 18 months from the time you submit the application for citizenship until the oath ceremony, where you actually become a citizen. No idea what the time frames will be in 2011, but it could be the same, which would mean you might actually become a USC around December 2012, or January 1013.

Just wanted to point out that you might become a USC *after* his 18th birthday.

Rene

Folinskyinla

Hi:

Do that I-130 to get the ball rolling. Once it is approved, please note that you have some time flexibility in that when you want to stretch things out, you a year to respond to each communication from Department of State.

Folinskyinla

Hi:

I was talking to a colleague yesterday [He has an oral argument coming up on Tuesday at the Court of Appeals in Pasadena. We have some fun in being a one-man three-judge panel for each other in preparation.] I had mentioned the string you quoted and he came up 322 before I did. But he he mentioned a case this week he had been hired on -- an educated Mexican married to a US citizen. He had done his research and knew he was not eligible for 245(i) and that he was subject to a 10-year bar if he returned to Mexico. All his friends confirmed he was out of luck. He finally went to see my friend out of desperation -- he ignored one little salient fact: he had entered the US with a visa and not as an "EWI." He is eternally grateful to my friend, has hired him. He could have become an LPR 4 years ago and never new it.

Of course, Howard and I have a combined 65 years of experience between us. You see why I think consulting was an experienced immigration lawyer is sometimes a good thing?

kelzm

Thanks for your answers.

They've been helpful. Another thing I didn't realise was that there a year time frame to reply to the Department of State! That may be very useful for us in working out timing for my son.

Folinskyinla - yes, I can absolutely see why immigration attorneys can add that bit of extra info to help. My husband and I did actually meet with a lawyer at one point but their advice to us was that our case was pretty straightforward and to go it alone. (I did find that bizarre as I just assumed they'd want to get our business, heh heh.).

Anyway, thanks again. I appreciate the information.