HiFi21

How long did it take you to get your son's passport? And did you have to provide any proof he was residing with your husband in the US?

Hey Abum, please tell us how the process goes for you and what proof you needed for residency and how long it took. 

I appreciate everyone's input but I am now reminded of when we applied for my husband's immigrant visa. Asking for advice online, or friends, even asking the embassy, all led to answers that were totally off the mark. In the end, the immigration law codes themselves were actually clearer and more informative than any other source.

No, VISA is something you use to enter and stay in another country. I used all caps and bold for emphasis, which should be obvious. For example, on the I-130 or DS-260. Does it ask one their place of domicile specifically?

Yes, we made our choices, and if he can't get citizenship, so be it. 

But if he can and the government determines him to be entitled to it, why not apply? The fact is if he wanted to go to college in the US and applied for a student visa, the burden would be on him to prove he was not going to stay in the US after he finished. With an American father and stepmother with a home, etc etc in the US,  they would likely deny him the visa on the grounds that they did not believe he was going just to study and tell him to apply for an immigrant one instead. I see you all come from countries with low visa fraud rates but we are living in a country where a male in his late teens would be scrutinized very heavily and there is no way he would be able to meet the burden of proof for a student visa as he could for an immigrant one.

2 minutes ago, mushroomspore said:

That's why the visa application asks for establishment of US domicile or intent to establish US domicile. 

Where on the VISA application do it ask for that? It does on the I-864 form, but where does it on the visa application itself?

20 minutes ago, JFH said:

Of course you had other options. You are both USCs and you could have come here for 9 months to complete a surrogacy or for the duration of an adoption. Or even - heaven forbid - you could have sent wife number 2 here to have the baby like the “planeloads of Chinese women” who apparently come here “every day” to do exactly that. 

We are both dual citizens, so we are also subject to the laws of the country we currently live in and either adoption or surrogacy (which would involve passing off a child who cannot by the law here ever be recognized legally as ours) could land us in prison. It would be like kidnapping or buying a baby, not to mention a moral crime. And if we were ever found out, the child would no longer have been recognized as my husband's child, basically it would have been turned into an orphan.

As for sending the other wife to give birth here, there would have been a risk that either she or my husband could be seen as coming to the US to practice polygamy or stay permanently, in which case, she would be denied any visa at all. Also, he could be considered as practicing bigamy if she was present on US soil under state laws. As it is now, state laws do not apply to him as he is not residing in any state so he is not breaking any laws. 

I understand some of you may have moral objections, but I would hope you would try to have some sympathy for someone who is stuck between the sometimes contradictory laws of two countries that both have jurisdiction over them and is trying to live their life and follow both laws.

1 hour ago, mushroomspore said:

Yet you were wondering why we were questioning your intentions?? USCIS' instructions are to be taken pretty literally: the child needs to be residing in the US with the US parent. You're saying, "the requirements to apply for it are the same as for those who would use it for residence; in effect it is actually only used as an entry permit to the US." No, it is not. It is for those who WANT to reside in the US and are used as such. 

First off, how can the child be residing in the US before applying for the visa since they apply for the visa from abroad? And second of all, if the they automatically become citizens upon their passport being stamped at the airport, how can they also reside in the US on the visa? I'm not questioning the purpose of the visa, but in this case they don't actually have the opportunity to live in the US on that visa due to the law itself! Basically the government is giving the child a visa whose main purpose is one that the child is not even able to use it for.

Since my other thread was locked for some unexplained reason, I wanted to continue asking some questions. On my other thread people were saying that the consular officer might refuse to issue an immigrant visa if they felt the purpose of the visa was not to immigrate. So I googled this, and I found quite the opposite. I quote directly from the law (INA 315(a)):

Quote

Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .

This means that anyone who goes to apply for a visa of any kind is presumed to have the intention of staying permanently. It is only if the person wants to visit the US temporarily, that they must prove their intent is NOT to stay permanently. Try googling "prove non-immigrant intent" and you will get over 13 million results. Google "prove immigrant intent" and you will get a total of THREE, one of which is someone making a joke about the concept in this forum. 

In fact, there are sometimes people who wind up applying for immigrant visas who just want to visit the US because they are refused the visitor visa because the consular officer doesn't believe their intention is just to visit. 

The US does not have a problem with people understaying their visas. The problem is those who overstay them.

5 minutes ago, Boiler said:

The Mothers details will be on the form, why would you want to hide it.

 

The issue is as we said earlier, domicile.

I didn't say we want to hide it. My point was simply, the law here is if the parents aren't married, the father's name CAN'T go on the birth certificate. It does not state that the parents are married, but the consular officer would know because they know the law here. Just as if the same situation took place in Australia for example, the consular officer would know the child was the product of an affair because polygamy is NOT permitted and because the father was already married, the child only could be the product of an extramarital affair. It is what it is.

I have yet to see anything that indicates domicile is required for the approval of the visa application except in the context of an application needing the I-864 form. I'm not saying a consular officer wouldn't make the decision to rule against issuing the visa for that reason, but no one has offered any indication that they are required to rule that way.

Yes, the child would be required to register for Selective Service. Of that we are fully aware, but it would get him out of possible obligatory military service in the country he is currently a citizen of because dual citizens cannot serve, and the former is a lesser evil than the latter even if he were drafted, I can assure you of that!. As for tax obligations, yes I am aware of those as we already have to fulfill them ourselves. We don't meet the threshold to pay income tax but we are both self-employed and pay our share of social security taxes.

But really, we want him to have the option to work, study or live in the US in the future. I will soon likely inherit a home in the US and eventually I want someone to inherit it and our other US assets if my husband were no longer alive it would likely be him so he would even have a home and other assets in the US. Or perhaps he would go live there while I still own it. Whatever. 

Just because we would not necessarily stay in the US immediately after his gaining citizenship, we are doing it with the intention of giving him the opportunity to enjoy the benefits of a citizen resident in the US in the future.

I don't know why anyone is questioning our intentions. Every day there are planeloads of Chinese women flying to California to give birth and then returning to their countries immediately after and that is perfectly legal. Those children will have no ties to the US whatsoever. This child is being raised by an American parent and step parent and we have spoken English to him since birth and will raise him to know the history and culture of the US even if we aren't living there. 

If they reject the visa application, so be it. It's not the end of the world. We aren't planning on committing any sort of fraud nor am I looking for advice on how to either. But because the circumstances are unusual, I just want to get an idea about what we need to be thinking about and how to prepare the application.

The rules for adoption are different from biological children of American citizens. I am not even going to bother with addressing that list.

My husband entered the US as an immigrant and signed a paper saying he was not coming to practice bigamy. And indeed, he did not violate any laws because it was not his intention at the time. And he became a citizen not having practiced bigamy.

We had infertility issues though after we returned to his country and adoption is not legal here, nor is surrogacy. We had no other options. So we made this decision long after he became a US citizen.

Now, his marriage to the other wife is considered null and void under US law, but he has not violated any laws in marrying her either. You can only be prosecuted for bigamy practiced outside the US as a citizen if you try to claim some sort of benefit for the other wife herself in the US, which he has no plans to do. SHE actually would not be eligible for immigration herself too as she knowingly engaged in polygamy.

As for the child, it would be considered legitimate by the US government because for this purpose, the US government only cares if the country in which the child and the parent are currently DOMICILED (yes they assume this is not the US) considers the child to be legitimate. And the child is considered legitimate under local law because the parents' marriage is recognized as valid here.

Yes the I-864W says the child must be residing with the parent in the US. But remember they are applying for an immigrant visa, so they aren't already residing there of course. Here's what the law itself says:

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.

Did you ever get an answer to your question about domicile? We are looking at a similar situation.

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.

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?

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.

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!

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.

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.

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.