Child Born Abroad to US Citizen Father and Mother Green Card Approved

[S A 1]

Hi Everyone,

 

Seeking guidance from the folks on this forum on my situation.

 

Background 

I am a US Citizen...previously a green card holder. 

Wife Green Card application approved (Have a letter form US Consulate) - But Visa not stamped yet as we opted to wait until we get the visa for my 2 kids.

2 Kids (Minor) - Waiting for their green card interview (i130 approved - Waiting for their Documents to Qualify (DQ) for the interview)

3rd New Born last month 

 

All this while I was under the impression I can easily get the US Passport for the new born child until I realized that I need 5 years physical presence in US to be eligible for getting the CRBA approved. My physical presence in US is approximately 4 years 8 months. Although I am outside United States now but i am working in US Company remotely (Private Company) currently until i can take my wife and kids along with me.

I have tax returns since 2017 and i have w2's for 2022.

 

What options do i have other than filing i-130 again?

 

- Can I file for CBP Transportation Letter (NA - 3 Baby)? As my wife's green card application is approved she can get the visa stamped if she mails her passport to US Consulate.

- Can the officer consider exception to approve the CRBA given my situation?

- Can i apply for a Visit Visa for my new born kid? 

 

The concern is even if i file i-130 for my new born kid my wife will have to get the visa stamped in the next 6 months otherwise we'll have to start the process all over again for her (which is not possible) and we cannot leave behind the new born child.

 

Appreciate any feedback and guidance.

 

Thanks.

 

 

[Timona 3,947]

A visit visa is gonna take the same amount of time as I-130 to get to the front of the queue. 

 

I'd just put the I-130 in, fly in with wife and the other 2 to trigger GC production, then one of you to fly back and take care of the young one till he gets his visa appointment. I don't see special "jumping of queue" being granted. 

 

The kids will become USC upon entry anyway. 

Edited November 30, 2022 by Timona

[Chancy 6,233]

*** Moved from US Citizenship General Discussion to Bringing Family of USC forum ***

 

28 minutes ago, S A said:

Wife Green Card application approved (Have a letter form US Consulate) - But Visa not stamped yet as we opted to wait until we get the visa for my 2 kids.

 

Your wife does not have an approved green card nor did she apply for one.  She applied for a spouse visa.  Green cards may only be applied for and granted inside the US.  Only after your wife enters the US with her spouse visa, will she become a green card holder (ie, LPR).  The distinction is important because the criteria for non-US citizen infants to be able to travel for immigration without a visa are -- https://fam.state.gov/fam/09FAM/09FAM020102.html#M201_2_3

• child born of an LPR mother during a temporary visit abroad
• child born after the issuance of a visa to an accompanying parent

Your baby is neither of the above because your wife is not an LPR, and your baby was born before your wife's visa has been issued.  There will be no exception for CRBA if you do not have the required years of US physical presence.  Your baby also does not qualify for a visitor visa due to your family having immigrant intent.  Your baby needs an immigrant visa to be able to move to the US.  File the I-130 for your baby ASAP.

 

[Dashinka 23,267]

I would see if the consulate will accept direct filing of the I130 for the newborn.  It is a little complicated since you are awaiting regular processing for the other children, but it might be possible if you have a need to relocate back to the US relatively soon.

 

Good Luck!

Edited December 1, 2022 by Dashinka

[Chancy 6,233]

6 minutes ago, Dashinka said:

I would see if the consulate will accept direct filing of the I130 for the newborn.

 

If the consulate does not accept direct filing of the I-130, requesting expedites at USCIS and NVC stages would also be an option.

 

[jan22 2,898]

2 hours ago, S A said:

...All this while I was under the impression I can easily get the US Passport for the new born child until I realized that I need 5 years physical presence in US to be eligible for getting the CRBA approved. My physical presence in US is approximately 4 years 8 months. Although I am outside United States now but i am working in US Company remotely (Private Company) currently until i can take my wife and kids along with me.

...

 

Appreciate any feedback and guidance.

 

Thanks.

 

 

Are you 100% sure you calculated your physical presence properly?  How and when did you get your green card?  Did you spend time in the US before you got the green card?  if so, did you include that time? 

[SalishSea 16,791]

4 hours ago, S A said:

Wife Green Card application approved (Have a letter form US Consulate) - But Visa not stamped yet as we opted to wait until we get the visa for my 2 kids.

That's not how that works.  You may want to research the process a little more.

[Dashinka 23,267]

11 hours ago, jan22 said:

Are you 100% sure you calculated your physical presence properly?  How and when did you get your green card?  Did you spend time in the US before you got the green card?  if so, did you include that time? 

This is a great point.  For someone that naturalized under what I assume is the 5 year rule, it seems likely there was more than 5 years of physical presence since the OP got their GC.

 

 

[S A 1]

27 minutes ago, Dashinka said:

This is a great point.  For someone that naturalized under what I assume is the 5 year rule, it seems likely there was more than 5 years of physical presence since the OP got their GC.

I had green card since 2013 and back then i use to study abroad and make frequent trips within 6 months, and i was told that is counted as continuous residence, and when i applied for naturalization in 2019 the requirement at that point was you need have 30 months of presence in US. I have calculated all my entries and exit in US the total is coming down to 4 years & 8 months and 16 days. 

[S A 1]

12 hours ago, Chancy said:

If the consulate does not accept direct filing of the I-130, requesting expedites at USCIS and NVC stages would also be an option.

What does this mean, can I file i-130 at the US Consulate? will this have any benefit in terms of expediting the process?

[Dashinka 23,267]

1 minute ago, S A said:

What does this mean, can I file i-130 at the US Consulate? will this have any benefit in terms of expediting the process?

You can if you have an exceptional circumstantial need to relocate back to the US.  The most common reason is a need to repatriate due to a work commitment.  It is not guaranteed the consulate will accept it, but if they do, it does speed up the process quite a bit.  You can search DCF India (or your specific consulate) here in the VJ search engine.

 

4 minutes ago, S A said:

I had green card since 2013 and back then i use to study abroad and make frequent trips within 6 months, and i was told that is counted as continuous residence, and when i applied for naturalization in 2019 the requirement at that point was you need have 30 months of presence in US. I have calculated all my entries and exit in US the total is coming down to 4 years & 8 months and 16 days. 

Seems like you took everything into account.

 

Good Luck!

[Chancy 6,233]

51 minutes ago, S A said:

I have calculated all my entries and exit in US the total is coming down to 4 years & 8 months and 16 days.

 

Is that your total US physical presence up to the time of your oath ceremony?  Or is it the total up to the time of your baby's birth?  I assume you became a USC before your baby was born?

 

[S A 1]

7 minutes ago, Chancy said:

Is that your total US physical presence up to the time of your oath ceremony?  Or is it the total up to the time of your baby's birth?  I assume you became a USC before your baby was born?

Up until my oath ceremony, the total physical presence was probably 4 years & 6 months.

[Chancy 6,233]

6 minutes ago, S A said:

Up until my oath ceremony, the total physical presence was probably 4 years & 6 months.

 

So your total was 4 years & 8 months at the time of your baby's birth?

 

[S A 1]

3 minutes ago, Chancy said:

So your total was 4 years & 8 months at the time of your baby's birth?

Yeah, i got my citizenship last year in Sept and I left US in November 2021 as i had an option work remotely until i get the family back with me, but she got pregnant earlier this year and she attended the interview in June, the consular office asked her if she wants to get the visa now or wait until they get the file for my other kids....she opted to wait and he gave her a letter stating whenever you're ready you can mail your passport along with the letter. 

Edited December 1, 2022 by S A