US citizenship for children through grandparents

[ponyo_rocks 7]

Asking for a relative if their grandkids are eligible for US citizenship.

 

Background:

The grandmother and mother are both US citizens. Grandmother naturalized and mother was born in the US (in the 80's). Mother moved back to India when she was under 14 years of age and lived there until recently. She married an Indian citizen and had two kids born in India. Couldn't apply for CBRA since she did not live in the US as an adult. The father recently got a job and moved on an H1 visa to the US. The whole family moved to the US - the kids now have a H4 visa. The family plans to hire a lawyer to file green cards, but just wondering if that is the only option. 

 

I suppose they could have applied for citizenship for the kids through the N600K option, showing grandmother's proof of residency. But now that the kids are in the US, I dont know if that is even allowed. Are the kids eligible for citizenship using grandparent's residency proof?

[HRQX 4,146]

35 minutes ago, ponyo_rocks said:

Are the kids eligible for citizenship using grandparent's residency proof?

No, because the children do not currently meet the "residing outside of the United States" requirement. See INA 322(a)(4).

35 minutes ago, ponyo_rocks said:

to file green cards, but just wondering if that is the only option.

That is the only option. Once the childrens' I-485 applications are approved they automatically become US citizens per INA 320.

 

*Just a note that doing AOS can be DIY. Most on this website do it without lawyers.

Edited January 12, 2021 by HRQX

[Dashinka 25,909]

4 minutes ago, HRQX said:

No, because the children do not currently meet the "residing outside of the United States" requirement. See INA 322(a)(4).

That is the only option. Once the childrens' I-485 applications are approved they automatically become US citizens per INA 320.

Just curious, INA 322(a)(4) has the clause about the child being lawfully admitted to the US to be able to file the N600K.  Does the H4 admission not count for that?

 

 

A. General Requirements: Genetic, Legitimated, or Adopted Child Residing Outside the United States^[1]

The Child Citizenship Act of 2000 (CCA) amended the INA to cover foreign-born children who did not automatically acquire citizenship under INA 320 and who generally reside outside the United States with a U.S. citizen parent.^[2] 

A genetic, legitimated, or adopted child who regularly resides outside of the United States is eligible for naturalization if all of the following conditions have been met:

• The child has at least one U.S. citizen parent by birth or through naturalization, (including an adoptive parent);^[3] 

• The child’s U.S. citizen parent or citizen grandparent meets certain physical presence requirements in the United States or an outlying possession;^[4] 

• The child is under 18 years of age;

• The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, or of a person who does not object to the application if the U.S. citizen parent is deceased; and

• The child is lawfully admitted, physically present, and maintaining a lawful status in the United States at the time the application is approved and the time of naturalization. 

[HRQX 4,146]

3 minutes ago, Dashinka said:

The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, or of a person who does not object to the application if the U.S. citizen parent is deceased;

^This requirement is not currently met by the children.

5 minutes ago, Dashinka said:

Just curious, INA 322(a)(4) has the clause about the child being lawfully admitted to the US to be able to file the N600K.

You're confusing INA 322(a)(4) with INA 322(a)(5). The children don't currently meet INA 322(a)(4) requirement.

[Dashinka 25,909]

10 minutes ago, HRQX said:

^This requirement is not currently met by the children.

You're confusing INA 322(a)(4) with INA 322(a)(5). The children don't currently meet INA 322(a)(4) requirement.

Yes, I am trying to figure out how a child can reside outside the US and also be legally physically present in the US.  Just wondering if the kids would face the same wait times that Indian citizens here face for AOS from H1B/H4.

[HRQX 4,146]

1 minute ago, Dashinka said:

Just wondering if the kids would face the same wait times that Indian citizens here face for AOS from H1B/H4.

They are still Immediate Relatives of US citizen (i.e. their mother). The timeframe will mostly depend on NBC and the local field office.

2 minutes ago, Dashinka said:

Yes, I am trying to figure out how a child can reside outside the US and also be legally physically present in the US.

B2 visa or VWP. Naturalization under INA 322 is a permissible activity during a tourist visit. https://fam.state.gov/fam/09fam/09fam040202.html "Naturalization under INA 322 is a permissible activity in B-2 status.  You may issue a B-2 visa to an eligible foreign-born child to facilitate that child's expeditious naturalization pursuant to INA 322.  The child must be under the age of 18 at the time INA 322 requirements are met.  The child's intended naturalization, however, does not exempt the child from INA 214(b); the child must intend to return to a residence abroad after naturalization.  A child whose parents are residing abroad will generally overcome the presumption of intended immigration, provided that the parents do not intend to resume residing in the United States, whereas a child whose parents habitually reside in the United States will not."

[HRQX 4,146]

17 minutes ago, Dashinka said:

Yes, I am trying to figure out how a child can reside outside the US and also be legally physically present in the US.

Also a note that the N-600K process is filed from abroad and then the child travels to the US when the interview date is known. Thus during most of N-600K process wait time, the child is abroad.

[aaron2020 11,652]

Quickest and easiest way is for USC mom to file to adjust the children's status.  If they become green card holders before age 18, they automatically become US citizens.

How old are the kids?

Edited January 12, 2021 by aaron2020

[ponyo_rocks 7]

Thanks for all the replies! The kids are 9 and 3 or thereabouts. The only breadwinner of the family is the H1B father. The USC parent is a homemaker. So can the dad's income be considered as household income for sponsorship. Mom has investments in USD and they'll be filing their first joint tax return in a few weeks. 

Does USC mom need to concurrently file I-130 + I-485?

[HRQX 4,146]

25 minutes ago, ponyo_rocks said:

So can the dad's income be considered as household income for sponsorship.

Only his AOS packet would need affidavit of support. She'll fill-out I-864 and he'll fill-out I-864A. https://www.uscis.gov/sites/default/files/document/forms/i-864ainstr-pc.pdf "How Can the Intending Immigrant Be Considered a Household Member?" He'll also need I-130A spouse supplement.

 

For the childrens' AOS packets, they are exempt from the affidavit of support requirement because they'll become citizens per INA 320. https://web.archive.org/web/20190823175938/https://www.uscis.gov/system/files_force/files/form/i-864w.pdf?download=1 "I am under 18 years of age, unmarried, immigrating as the child of a U.S. citizen, and will automatically become a U.S. citizen under the Child Citizenship Act of 2000 upon my admission to the United States."

25 minutes ago, ponyo_rocks said:

Does USC mom need to concurrently file I-130 + I-485?

They'll each need a set of forms (i.e. each will need their own "packet"; everything can still be submitted in the same envelope). Immediate Relatives cannot have derivate beneficiaries so she'll need to file three I-130 petitions. The H1B will sign his I-485, and either the H1B or the US citizen can sign the two I-485 applications on behalf of each child because they are under the age of 14. Same rule with the optional I-765 and I-131 forms. https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-2

A parent may sign a benefit request on behalf of a child who is under 14 years of age.^[12] Children 14 years of age or older must sign on their own behalf. If a parent signs on behalf of a child, the parent must submit a birth certificate or adoption decree to establish the parent-child relationship.

A legal guardian^[13] may also sign a benefit request on behalf of a child who is under 14 years of age, as well as for a mentally incompetent person of any age.^[14]

By signing the benefit request, the parent or guardian certifies under penalty of perjury that the benefit request, and all evidence submitted with it, either at or after the time of filing, is true and correct.

Edited January 13, 2021 by HRQX

[aaron2020 11,652]

17 minutes ago, ponyo_rocks said:

Thanks for all the replies! The kids are 9 and 3 or thereabouts. The only breadwinner of the family is the H1B father. The USC parent is a homemaker. So can the dad's income be considered as household income for sponsorship. Mom has investments in USD and they'll be filing their first joint tax return in a few weeks. 

Does USC mom need to concurrently file I-130 + I-485?

Yes, USC mom needs to file separate I-130, I-485, and other forms in order to adjust status for the kids.  Follow the Guides on VJ.

Since the children would become USC automatically when they get their green cards, they do not need a sponsor for the I-864.  Dad's income is not needed.  Furthermore, dad does not qualify to be a sponsor since he is neither a USC or a green card holder.

Since you are helping them out, you should also suggest that USC mom files to adjust her husband's status so he can get a green card.  

[ponyo_rocks 7]

Thanks a lot @HRQX and @aaron2020, for your detailed responses.

 

Yes, the USC wife plans to apply for husband as well, but I presumed that the husband definitely needs to go through the standard GC application route. Seems like it is a bit simpler for the kids. If I can help the family save a bunch of lawyer fees, it will make me very happy. 

 

[HRQX 4,146]

56 minutes ago, ponyo_rocks said:

If I can help the family save a bunch of lawyer fees, it will make me very happy. 

I assume the children don't have SSNs. Thus, I recommend submitting Form I-765. With either EAD, GC, or US passport they'll then be eligible for SSNs. If they pay the I-485 fees, then both I-765 and I-131 are free to file: https://www.uscis.gov/sites/default/files/document/forms/i-485instr-pc.pdf

Quote

Filing Form I-485 with Forms I-765 and I-131
If you properly file Form I-485 and pay the required fees, you may file Form I-765 and Form I-131 without paying additional fees. You may file these forms together, or if you choose to file Form I-765 or Form I-131 separately, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence that you filed and paid for Form I-485.

In general, send the following twelve packets (*note that I-765 and I-131 packets are optional, but highly recommended) in the same envelope to the Chicago Lockbox:

• I-130 with I-130A and copy of marriage certificate, filing fees, etc.;
• I-485 with I-864 and supporting documents, I-864A and supporting documents, I-944 and supporting documents, electronic I-94 copy, filing fees, etc.;
• I-765 with electronic I-94 copy, etc.;
• I-131 with electronic I-94 copy, etc.

 

• I-130 and copy of child's birth certificate, filing fees, etc.;
• I-485 with a letter (or old Form I-864W) stating that the child is exempt to Affidavit of Support requirement, I-944 and supporting documents, electronic I-94 copy, filing fees, etc.;
• I-765 with electronic I-94 copy, etc.;
• I-131 with electronic I-94 copy, etc.

 

• I-130 and copy of child's birth certificate, filing fees, etc.;
• I-485 with a letter (or old Form I-864W) stating that the child is exempt to Affidavit of Support requirement, I-944 and supporting documents, electronic I-94 copy, filing fees, etc.;
• I-765 with electronic I-94 copy, etc.; and
• I-131 with electronic I-94 copy, etc.

They can separate each packet with rubber bands or fasteners: https://www.uscis.gov/forms/forms-information/form-filing-tips

On the I-130 packets, I-130 payment method (check, money order, or Form G-1450) must be the very first item of those packets.

On the I-485 packets, I-485 payment method (check, money order, or Form G-1450) must be the very first item of those packets.

 

If the children have received public benefits listed on Page 8 of I-944 instructions do not list those benefits on I-944 as they are exempt from that specific part of the Public Charge rule: https://www.uscis.gov/sites/default/files/document/forms/i-944instr-pc.pdf See page 10 "Children Acquiring U.S. Citizenship" row.

Edited January 13, 2021 by HRQX

[HRQX 4,146]

4 hours ago, HRQX said:

a letter (or old Form I-864W) stating that the child is exempt to Affidavit of Support requirement,

I just remembered that it's now even simpler in the children's circumstances. Just select "I am under 18 years of age, unmarried, immigrating as the child of a U.S. citizen, and will automatically become a U.S. citizen under the Child Citizenship Act of 2000 upon my admission to the United States." box on Page 14 of Form I-485. https://www.uscis.gov/sites/default/files/document/forms/i-485-pc.pdf

Edited January 13, 2021 by HRQX

[ponyo_rocks 7]

Thank you @HRQX - really grateful for your time, response and knowledge - I've been forwarding your responses to the family and will help them review their application. Do they need to have a filed joint tax return in order to apply for the H1B spouse? 2020 will be their first tax year and they're getting ready to file I think.