question on niece born in Canada

[MEDSHE20 0]

I have a 16 year old niece, she was born in Canada, but came over here when she was a baby with her father who was born in Canada, lived there, moved over here and married my sister who is a U.S. citizen. My niece has lived here her whole life. She has a social security card which she got when she was a baby.

She went to get her drivers license through the state of Missouri yesterday and they told her she was an illegal alien. My sister explained the situation and she showed them her ss card, they were questionable about how she got that.

She doesn't know what to do at this point, obviously she will need a drivers license. Anybody have any replies or help on this one. She called me with questions because my husband and I are both dealing with immigration issues. I advised her to make an infopass appt and see what they say.

Any help appreciated, thanks.

[Penguin_ie 5,986]

When her dad came over here, how did he do so (ie which visa)? Or is he illegal too?

[VanessaTony 3,567]

Well there are a couple of qns. Is your niece your sisters child (honestly doesn't read that way, but just checking)? If so she should have done CRBA (Consular Report of Birth Abroad) to have the child recognised as a USC. If she's NOT your sisters child, then the following will apply. Bearing in mind, if the childs mother is somewhere she needs to give permission for immigration paperwork usually (I'm not sure whether that applies once she's IN the US, or only to get a visa TO the US).

She's lucky because she's currently under 18. if she IS here on an over-stay (first she's only "illegal" if she entered the US illegally, otherwise she's just overstayed her visa), and if she hasn't become an LPR or USC, once she reaches 18 she's deemed to have made the illegal choice herself. Right now she has some stuff to find out, and some things to do.

Basically marrying a USC her father should have applied for an adjustment of status to LPR (many factors affect his, such as if he entered legally etc), and from the sounds of things he's been married a while so he may be a USC himself now (requires the filing of paperwork). IF SO, your niece should have become a USC based on her fathers USC status. Thats one thing she'll need to find out. He will have a naturalisation certificate and minors (your niece) should be listed on it or something, minors don't get their own certificate.

If none of this has happened she (and her father) need to get on their status stuff ASAP. I find it hard to believe the father has been here for 16 (ish) years without doing anything about his status but if he hasn't he's got some issues himself.

Your niece needs to find out what, if anything, was done about HER status (her father should have put her on his paperwork). Once your niece knows WHAT, if anything, was done about her status then we can give better answers. Worst case scenario (right now) nothings been done at all and it needs to be started, which means your sister sending in an I-130 and I-485 for her husband and then some other stuff for his child. Best case scenario, she's already a USC through her father but he never told her about it and she just needs to find the naturalisation certificate (or order another one for her records). Waiting too long for this stuff, it could get much worse if she gets reported to ICE for being a "visa overstayer". I don't know if the DMV does that....

When her dad came over here, how did he do so (ie which visa)? Or is he illegal too?

As I stated in my above post, there's a difference between ILLEGAL, and "visa overstayer".

As long as they entered with inspection (i.e. through a visa, or Canadians 6 month visitor thingy) then they're "overstayers", not illegal.

If they crossed the border through swamps etc (for example, not literally) and snuck in without a visa or the Canadian visitors thing, then they're illegal.

If they're illegal then they cannot adjust status. If they're overstayers, they can.

Edited June 19, 2010 by Vanessa&Tony

[MEDSHE20 0]

My sister has custody of her. Her father is a U.S. citizen, or possibly dual citizenship. She never applied for anything, my sister is divorced from my nieces father now. When they first got married they lived in Canada. They moved back to the U.S. after a few months. She never had a visa or anything, my sister didn't know at the time. She thought it was okay since she was a U.S. citizen. Alot has changed with immigration in the past 15 years. When she was here in the U.S. she sent away for a social security number for her and got it, there were never any questions about it. She has no type of visa of any kind.

[VanessaTony 3,567]

My sister has custody of her. Her father is a U.S. citizen, or possibly dual citizenship. She never applied for anything, my sister is divorced from my nieces father now. When they first got married they lived in Canada. They moved back to the U.S. after a few months. She never had a visa or anything, my sister didn't know at the time. She thought it was okay since she was a U.S. citizen. Alot has changed with immigration in the past 15 years. When she was here in the U.S. she sent away for a social security number for her and got it, there were never any questions about it. She has no type of visa of any kind.

So what you're saying is your sister IS a USC (or was at the time of the childs birth) and is the mother of your niece and your nieces father is ALSO a USC. Well okay that's easy. Here is the CRBA stuff: http://www.consular.canada.usembassy.gov/birth_abroad.asp This is the citizenship claim stuff: http://www.consular.canada.usembassy.gov/usa_citizenship_claim.asp and this could be in place of the CRBA: http://www.consular.canada.usembassy.gov/passport_first.asp

Anyway I hope some of that helps. By the sounds of what limited info you've given me she SHOULD be okay, but she will need to do SOMETHING because right now she's a Canadian citizen because she was born there, and she will need to claim her USC due to her parents being USC's.

Good luck!