Best Approach for IR2 application (involves stepchild/polygamy)

[HiFi21 5]

I'm going to keep this as simple as possible. I am a US citizen by birth. I married a non-US citizen about 20 years ago and we obtained an immigrant visa for him and he became a US citizen 10 years ago.

 

We moved back to his home country shortly after he got US citizenship, after 3.5 years as a permanent resident.

 

We were never able to have children. We live in a country where polygamy is legal and he married a local woman as a second wife (while still married to me) in order to have a child.

 

A child has been born and we would like to get him US citizenship. He is not eligible for citizenship from birth because my husband did not spend enough time in the US to pass on his citizenship as the sole citizen parent.

 

However, the child would be automatically eligible for citizenship upon entry to the US on an IR2 visa and his mother is willing to sign a paper giving permission for him to get a US passport, so we are OK on that front. We also do not need an affidavit of support because he would become a citizen upon entry

 

The question remains, what is the best way to apply for the IR2 visa. As I see it, we have 3 options:

 

1. Because our marriage took place before the baby was born, he is considered my stepchild under US law and therefore I could make the application on his behalf.
2. My husband could make the application as the father of a child born out of wedlock according to INA 309 (https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9774.html) on one of the following grounds:
   1. he acknowledges paternity of the child under oath
   2. the child is legitimated because his marriage to his mother is considered legal in the country we live in even though it is not recognized as such by the US

 

I am a bit conflicted over which of these options would be best. Note: From all my reading, no laws have been broken due to the polygamous relationship as he contracted the marriage after becoming a US citizen, and is not using the marriage to claim any benefits from US entities for his second wife. 

 

Option 1 would be the most straightforward, but I wonder whether the consular office would question why I was making the application instead of my husband.

 

However, we are a bit worried about the last two options nevertheless. Acknowledging paternity under oath seems a bit odd because in this country, a man will only be recognized as a father if he is legally married to the mother, so this might look odd when it is not the normal way here. However, the idea of using his marriage to a second wife as legitimated while still married to me as the grounds of the eligibility also feels a bit odd and we worry if there is some hidden issue that could open him up to problems because his second marriage is not considered valid under US law. I have read that refugees are able to bring their children from their second wives with them to the US on visas so I would presume by the same token, the fact that he is born from a second wife should not be an obstacle in theory. Another issue with the options of him applying are that he would need to sign a paper saying he will support the child until he is 18. Not that it is a problem but I just imagine a scenario where the child has an accident while we are in the US and this could be used to suck our bank accounts dry to pay for the hospital bills or something.

 

No matter what option we choose, we do realize the fact that he has contracted the second marriage is going to have to be part of the visa application. However, I am thinking if I make the application at least no one can say he himself is trying to claim any benefits of any kind as someone practicing polygamy.

 

I don't have any specific questions and we most certainly would hire an immigration lawyer before proceeding just to make sure we would put together the application package with all documents that might be required, but I would like to hear anyone's thoughts on this situation. Which option would you choose? Thanks in advance for your answers.

 

Edited September 27, 2018 by HiFi21

[Boiler 45,647]

The word is Bigamy.

 

He is a US Citizen, he had a child, the Mother is willing for the child to immigrate to the US to be reunited with the father.

 

Has he moved back to the US? If not when will he be looking to do so?

 

Presumably he has been meeting his tax obligations as a USC.

 

 

[HiFi21 5]

Actually, since the child would become a US citizen upon entry to the US, our plan would be to stay long enough to get the child a passport and return to the country where we are living now. But in any case, the child's mother is willing to sign anything needed to facilitate that (permission to leave the country if needed and permission for a US passport)

 

All of us are living in his country of origin now-me, husband, mother, baby We all live in the same house together so everything is being done in the open with full knowledge.

Yes, we are both keeping up our tax filing requirements.

 

The whole polygamy angle is why I am thinking it would be easier for me to do the application. All the US cares about in that case is my marital status, which is still valid and legal, and the child's biological father. 

 

As I understand it, for a child to be considered a stepchild under US law, we have to have married before he turned 18. We meet that requirement.

 

For him to be considered my husband's biological child, my husband's name has to be on the birth certificate. We meet that requirement too.

 

There are plenty of people on here who got visas for their stepchildren who were born out of wedlock and that is basically how I think this would be treated.

 

I have done extensive research and as long as my husband does not make any claims or applications to get any sort of benefits of any kind for his other wife in the US, he is not breaking any laws. However, I think a stepchild application is going to be more straightforward.

 

While the fact he was practicing polygamy would not need to be mentioned anywhere explicitly in the application, it would be obvious because if he had not been married to the mother the government here would have refused to put his name on the birth certificate, so by default, he had to have been married to her. But we aren't going to be claiming benefits for her, only the child.

 

The bottom line is that the stepchild application process is clearer and has less grey areas.

 

Edited September 27, 2018 by HiFi21

[HiFi21 5]

I wanted to add if you are asking about tax status, I don't think it is relevant because the child will become a citizen upon entry to the US  based on his father being a citizen so no matter which one of us applies, we would not need to provide proof we can financially support him. The same law that applies to foreign children adopted by American parents applies here.

 

And I should add that I had a friend do a visa application for her husband here. He actually remarried his ex-wife a month after he married my friend in order to get government funding for his son from his first marriage (which was never legally registered in their home countries) and then divorced her again a few months later. This technically made him polygamous and you would think, ineligible for a visa. They admitted everything in the application but the consular officer still approved the application because they explained the circumstances to his satisfaction. I even have a relative who married a second wife without divorcing his first (and he married her in a country where polygamy is not legal) and somehow managed to bring his second wife to the US on an immigrant visa. I don't know how he worked that out but it happened.

Edited September 27, 2018 by HiFi21

[Boiler 45,647]

I was wondering about domicile.

[HiFi21 5]

That's a good point. I don't remember what we did for the domicile issue when we applied for my husband's IR-1 in 2004. I had been living overseas nearly 5 years at that point and did not have a home in the US but we had no issues with that (although they refused to accept my sponsorship alone even though I met the minimum requirements, but we had an extra form from my parents ready just in case). I think it may have been because I was working for an American research organization abroad that is on the list of organizations that count toward US residency/domicile at the time.

 

But I think domicile is something they ask for on the I-864 form, and we would be exempt from having to submit that form for the child as he would become a US citizen upon entry to the US thanks to the Child Citizenship Act of 2000. They only care about your financial resources if you are bringing a non-citizen that could wind up taking public benefits. But at that point he would no longer be a non-citizen so the issue would be moot.

 

I will investigate it to be sure though. Thanks for bringing it up!

[geowrian 22,337]

3 hours ago, HiFi21 said:

But I think domicile is something they ask for on the I-864 form, and we would be exempt from having to submit that form for the child as he would become a US citizen upon entry to the US thanks to the Child Citizenship Act of 2000. They only care about your financial resources if you are bringing a non-citizen that could wind up taking public benefits. But at that point he would no longer be a non-citizen so the issue would be moot.

Yes and no. They are exempt from the public charge issue since they will be a USC upon entry on the visa. However, you still need to file an I-864W for them to get the visa, which I believe does still have the domicile requirement.

Edited September 27, 2018 by geowrian

[SusieQQQ 11,586]

Are you actually planning to move back to the US or do you just want to "enter" so that the child becomes a citizen? I'm not clear on this from what's been posted. Family based visas are intended for reunification in the US, not just for passing on to family with no one intending to live in the US for the foreseeable future, hence the domicile issue is important.  You may not remember what you did before but you clearly did actually move back, at least for  the 3.5 years it took to get his citizenship.

[HiFi21 5]

I see your point. The situation is kind of odd. Because as you say an I-2 visa is for children who will become a permanent resident of the US, regardless if they want to ever become citizens or not. But if the recipient of an I-2 visa has an American parent that meets certain conditions, then the moment their foreign passport is stamped upon arrival in the US, they are US citizens and can immediately apply for a US passport. So they never actually ARE a permanent resident of the US. They are in possession of a visa that allows them to enter the country and then they are a citizen immediately. 

 

I guess the question is what is the reason that they require domicile? Is it simply because they want you to prove that the immigrant is coming to stay with their family?

 

Or is it because the government wants to make sure that they can find someone to take the financial responsibility if the immigrant (not naturalized citizen) becomes a public charge? If the sponsor is not working in the US, doesn't have assets in the US, then it would be pretty hard for the government to come after them with a collection agency.

 

And just to add, the government has no right once someone is a US citizen to force them to stay on US soil, so it makes me wonder why they would care? There's plenty of women who come to the US on tourist visas pregnant and then take the next plane back to their country with their new little American baby.

 

Anyway, this is why we would consult a lawyer before we proceed with anything. I think further down the line our circumstances will be such that it would be much easier for me to prove domicile in the US, so we might delay the application until then. But I do appreciate your suggestions because it gives us an idea what we need to be asking the lawyer about.

[geowrian 22,337]

2 minutes ago, HiFi21 said:

I guess the question is what is the reason that they require domicile? Is it simply because they want you to prove that the immigrant is coming to stay with their family?

The purpose of the IR-2 visa is for family reunification. If the family is already together abroad, there's no purpose for the visa. Showing US domicile implies that they intend to live in the US, and therefore the visa is to reunify the family.

It's not a matter of financial responsibility, as noted the I-864W doesn't request this.

 

5 minutes ago, HiFi21 said:

And just to add, the government has no right once someone is a US citizen to force them to stay on US soil

Well, not in this situation. But there are circumstances where they are permitted to prevent a USC from leaving (criminal reasons, spousal or child support payments, etc.).

[HiFi21 5]

I found this on the State Department Web site:

 

Quote

 

Is Residence in the U.S. Required for the U.S. Sponsor?

 

Yes. As a U.S. sponsor/petitioner, you must maintain your principal residence (also called domicile) in the United States, which is where you plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions. To learn more, review the Affidavit of Support (I-864 or I-864EZ) Instructions.

The thing is, we would not NEED to file the I-864. Instead, we would be required to file the I-864W, which is for certain categories of immigrants, including those who will become citizens upon entry. The name of that form is Request for Exemption for Intending Immigrant's Affidavit of Support. So by virtue of its name, we would not be filing an affidavit of support. The question is, does that count as one of the exceptions?

 

[HiFi21 5]

Some other things I have found. The instructions for the I-864 clearly make reference to the address of the domicile of the sponsor, and the I-864 IS filed by the sponsor. 

 

However, the person who signs the I-864W is NOT the sponsor, but the intended immigrant (or in the case of a child under the age of 14, their parent or legal guardian on their behalf). And the instructions for it make no reference even to the address of the sponsor.

[geowrian 22,337]

I think you're grasping a bit here. Best to discuss it with an attorney.

[SusieQQQ 11,586]

1 hour ago, HiFi21 said:

I see your point. The situation is kind of odd. Because as you say an I-2 visa is for children who will become a permanent resident of the US, regardless if they want to ever become citizens or not. But if the recipient of an I-2 visa has an American parent that meets certain conditions, then the moment their foreign passport is stamped upon arrival in the US, they are US citizens and can immediately apply for a US passport. So they never actually ARE a permanent resident of the US. They are in possession of a visa that allows them to enter the country and then they are a citizen immediately. 

 

I guess the question is what is the reason that they require domicile? Is it simply because they want you to prove that the immigrant is coming to stay with their family?

 

Or is it because the government wants to make sure that they can find someone to take the financial responsibility if the immigrant (not naturalized citizen) becomes a public charge? If the sponsor is not working in the US, doesn't have assets in the US, then it would be pretty hard for the government to come after them with a collection agency.

 

And just to add, the government has no right once someone is a US citizen to force them to stay on US soil, so it makes me wonder why they would care? There's plenty of women who come to the US on tourist visas pregnant and then take the next plane back to their country with their new little American baby.

 

Anyway, this is why we would consult a lawyer before we proceed with anything. I think further down the line our circumstances will be such that it would be much easier for me to prove domicile in the US, so we might delay the application until then. But I do appreciate your suggestions because it gives us an idea what we need to be asking the lawyer about.

It is definitely domicile to live, this is precisely the reason that people like your husband can’t pass on citizenship. They don’t want a situation where all these people land once in the US to become citizens with no intent to live there, it is not a “hereditary” citizenship country like some others are.

 

the issue of citizenship by place of birth is another can of worms that’s not relevant to your case.  Definitely agree you need a lawyer. 

 

Edited September 27, 2018 by SusieQQQ

[HiFi21 5]

Domicile is not the reason he cannot pass on his citizenship from birth. It's that he is short on the amount of time he actually needed to be physically present in the US. Physical presence and domicile are two separate concepts.

 

Until now, I have not seen any mention on any State Dept or USCIS web sites of domicile or intent to establish domicile as a requirement EXCEPT in connection with the I-864. No mention in connection with the I-130 nor the DS-260.if someone can point me to something contrary to that, I would appreciate it. I'm interested in laws and policy guidelines for visas, not opinions on who should be entitled to citizenship.

 

If the child can get a visa to enter the country, the child is legally entitled to citizenship. Of that I am certain.