Newborn (abroad) of LPR Father, USC mother: Visa waiver possible?

[abum 324]

Hi.

A question here. I am reading the guide here (what what had been shared regarding the birth abroad for LPR). 

https://fam.state.gov/fam/09FAM/09FAM020102.html 

 

If the father is LPR for a number of years, and the mother is a natural born USC (but cannot pass the citizenship automatically), and the child was born abroad (after the LPR father became a LPR, and before the first return to the USA of the LPR father since the baby was born), would the visa waiver still possible? The language used in the guideline specifically mentioned LPR mother.
 

9 FAM 201.2-3  IMMIGRANT TRAVEL WITHOUT A VISA

(CT:VISA-364;   05-25-2017)

(3)  Certain Alien Children Not Required to Obtain Visas: 

(a)  The child born after the issuance of a visa to a parent, or a child under two years of age born of a Lawful Permanent Resident alien mother during a temporary visit abroad, is not required to have a visa if the child is:

(i)     Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent’s immigrant visa; or

(ii)    Born during the lawful permanent resident mother’s temporary visit abroad provided that:

·         Admission is within 2 years of birth; and

·         Either accompanying parent is applying for readmission upon first return after the birth of the child.

(b)  Requiring Reentry Document of Child’s Parent:  The provisions of 9 FAM 201.2-3 paragraph (3)(a) above apply only if the alien parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), or an SB-1 visa. With respect to 22 CFR 42.1(d), it is irrelevant whether the visa issued to the accompanying parent is an initial visa or a replacement visa.

(c)  Evidence of Parent-Child Relationship:  To facilitate the admission of children under the provisions of 9 FAM 201.2-3 paragraph (3)(a) above consular officers should instruct parents to have with them documentary evidence of the parent-child relationship.

 

Does this mean for the above case, since the language used in the guide specifically says it is meant only for LPR mother, the child must be petitioned? Or is there a different interpretation (where LPR mother and father are treated the same - and thus the newborn will still get a visa waiver - and the LPR father can accompany the newborn to the USA)?

[little immigrant 801]

Why can't the mother pass her citzenship into the baby? She'd have to do a Consular Report of Birth Abroad of a Citizen at the nearest consulate. 

Edited February 26, 2018 by little immigrant

[abum 324]

2 minutes ago, little immigrant said:

Why can't the mother pass her citzenship into the baby? She'd have to do a Consular Report of Birth Abroad of a Citizen at the nearest consulate. 

USC mother did not pass the 5 years in the USA requirement (2 years after the age of 14) - hence my question of getting either a visa waiver or having to petition.

[Cyberfx1024 7,980]

2 minutes ago, abumiqdad said:

USC mother did not pass the 5 years in the USA requirement (2 years after the age of 14) - hence my question of getting either a visa waiver or having to petition.

If they are going to be living in the USA then she has to petition him and show plenty of proof why they couldn't just do a CRBA. Also they have to be living in the USA at the time. The child would have to stay in Malaysia while this process is ongoing unless you got a tourist visa for them. You can not just take them to the USA and adjust status.

[abum 324]

23 minutes ago, cyberfx1024 said:

If they are going to be living in the USA then she has to petition him and show plenty of proof why they couldn't just do a CRBA. Also they have to be living in the USA at the time. The child would have to stay in Malaysia while this process is ongoing unless you got a tourist visa for them. You can not just take them to the USA and adjust status.

I know for certain tourist visa is a no go.

 

I was curious if there is a different interpretation of the above guide where , if the child born abroad, of a LPR father, (regardless of the mother's status), the same visa waiver can also be applied. 

[Cyberfx1024 7,980]

6 minutes ago, abumiqdad said:

I know for certain tourist visa is a no go.

 

I was curious if there is a different interpretation of the above guide where , if the child born abroad, of a LPR father, (regardless of the mother's status), the same visa waiver can also be applied. 

What country are you from, is it Malaysia, are you living in the USA or abroad, and how old is the child? It sounds like if the mother was a LPR and traveled abroad for a short period of time then ended up having the child abroad. Why not just go to the embassy and ask them?

[SusieQQQ 11,587]

Previous thread on this topic http://www.visajourney.com/forums/topic/658250-i-130-for-child-activation-trip-requirement/ which references yet another prior thread (but doesn’t provide a link to it)

OP, might help avoid repetition of the same questions and answers all the time if you update the previous threads, rather than post a new one every time a possible different angle comes up?

 

tbh, taking the previous threads into account, agree with suggestion above that either you visit the embassy and ask, or get an attorney, this case seems less straightforward than at first glance -unless circumstances have changed re your wife since previous threads, and expecting forum members to give a proper response with half the story never works.

 

It makes logical sense to me that a child born of a USC (rather than just LPR) mother entering with a LPR parent (you) for the first time doesn’t need a visa, but you’ll need to find someone official to agree with you. I’d suggest go to the embassy and see if they’ll issue you a transportation letter for the child.

 

Edited February 26, 2018 by SusieQQQ

[abum 324]

3 hours ago, SusieQQQ said:

Previous thread on this topic http://www.visajourney.com/forums/topic/658250-i-130-for-child-activation-trip-requirement/ which references yet another prior thread (but doesn’t provide a link to it)

OP, might help avoid repetition of the same questions and answers all the time if you update the previous threads, rather than post a new one every time a possible different angle comes up?

 

tbh, taking the previous threads into account, agree with suggestion above that either you visit the embassy and ask, or get an attorney, this case seems less straightforward than at first glance -unless circumstances have changed re your wife since previous threads, and expecting forum members to give a proper response with half the story never works.

 

It makes logical sense to me that a child born of a USC (rather than just LPR) mother entering with a LPR parent (you) for the first time doesn’t need a visa, but you’ll need to find someone official to agree with you. I’d suggest go to the embassy and see if they’ll issue you a transportation letter for the child.

 

8 hours ago, cyberfx1024 said:

What country are you from, is it Malaysia, are you living in the USA or abroad, and how old is the child? It sounds like if the mother was a LPR and traveled abroad for a short period of time then ended up having the child abroad. Why not just go to the embassy and ask them?

 

From Malaysia, currently in Malaysia with a re-entry permit. We're expecting the child (so until she gives birth, nothing is certain but we are preparing for it). 
 

@SusieQQQ Previous threads were for different child (already petitioned and now at NVC - no issues there, i even asked the embassy of the child's status previously - and yeah, I-130 was the only way to go, so i went there).

I will ultimately ask the embassy of this issue though i would like to know if other forum members have heard of cases that i can refer to regarding the DoS guidance i shared above, to make my case stronger when asking the embassy. (for example a supreme court ruling on Sessions v. Morales-Santana last year regarding the bias against the father instead of the mother - but that is citizenship matter). 

(i have personally encountered instances where people in the position of authority were not familiar with the case at hand, gave me wrong information, and even rejected my application at the counter - DMV, SSA, and SSA helpline - so i want to get as much information as possible before i ask them).

 

 

[Cyberfx1024 7,980]

5 minutes ago, abum said:

 

From Malaysia, currently in Malaysia with a re-entry permit. We're expecting the child (so until she gives birth, nothing is certain but we are preparing for it). 
 

@SusieQQQ Previous threads were for different child (already petitioned and now at NVC - no issues there, i even asked the embassy of the child's status previously - and yeah, I-130 was the only way to go, so i went there).

I will ultimately ask the embassy of this issue though i would like to know if other forum members have heard of cases that i can refer to regarding the DoS guidance i shared above, to make my case stronger when asking the embassy. (for example a supreme court ruling on Sessions v. Morales-Santana last year regarding the bias against the father instead of the mother - but that is citizenship matter). 

(i have personally encountered instances where people in the position of authority were not familiar with the case at hand, gave me wrong information, and even rejected my application at the counter - DMV, SSA, and SSA helpline - so i want to get as much information as possible before i ask them).

 

 

How far along is your wife?

[abum 324]

Just now, cyberfx1024 said:

How far along is your wife?

1st trimester - hoping for a non-eventful pregnancy. 

I do not think giving birth in the USA is an option for now - no insurance coverage, family support etc. 

[Cyberfx1024 7,980]

7 minutes ago, abum said:

1st trimester - hoping for a non-eventful pregnancy. 

I do not think giving birth in the USA is an option for now - no insurance coverage, family support etc. 

So that's 6 months you have to move back, find a job and get insurance. We gave birth to 2 kids with no family support and they are just fine.

Edited February 27, 2018 by cyberfx1024

[abum 324]

1 minute ago, cyberfx1024 said:

So that's 6 months you have to move back, find a job and get insurance. We gave birth to 2 kids with no family support and they are just fine.

not an option that i hope to consider at this point in time. If i cannot get visa waiver,  I-130 looks to be the only option. but of course plans can still be changed.

 

I was in that boat too a while back and i realized it was very helpful to have family members around nearing the delivery date and after the delivery (we did fine back then i suppose, but i want to avoid it if possible).

[Cyberfx1024 7,980]

18 minutes ago, abum said:

not an option that i hope to consider at this point in time. If i cannot get visa waiver,  I-130 looks to be the only option. but of course plans can still be changed.

 

I was in that boat too a while back and i realized it was very helpful to have family members around nearing the delivery date and after the delivery (we did fine back then i suppose, but i want to avoid it if possible).

Well are you in Malaysia now or the USA? you being out of the country so long will be looked at.

Edited February 27, 2018 by cyberfx1024

[abum 324]

not in the USA, but with a recently approved re-entry permit. 

[ThomasNC1988 762]

If you don't come have that baby in America you are a little nuts. If your wife is a USC with no income she will get pregnancy Medicaid and it will cost you basically nothing. I hate to tell someone to use the system but the solution for you is painfully obvious.