HiFi21

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.

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.

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.

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:
 
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. 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: he acknowledges paternity of the child under oath 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.
 

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:
Sec. 320. [8 U.S.C. 1431] (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
From their policy manual, slightly different wording:  
Note that it doesn't matter what order these things happen in, just that all these conditions have to be met. There are children who immigrate to the US with an immigrant parent, even under the sponsorship of a stepparent, and when their parents become citizens, they too become citizens. So they fulfill conditions 2-3 and half of 4, but it is only when the parent becomes a citizen that they fulfill the rest.   Now, in our case, conditions 1 and 2 are already met, if they receive a visa and are admitted to the US, they fulfill condition 3, and if they have entered the US accompanied by the parent and that parent has legal custody of the child as well, they have now fulfilled all the requirements. I have read of many cases like this and they all say the child is considered a citizen the moment they enter the country and may apply for the passport the next day. There is no length of residency requirement, because if you note, it is AUTOMATIC. They don't have to apply for the passport actually if they don't want to travel again.   For me the biggest concern would be my husband filling out the petition because they do ask for the marital status of the petitioner. Under US law, I am his only legal wife, but yet for proving legitimacy as I mentioned above, his second marriage would be relevant. So what would he put down? Either way he might be considered to be lying on the form.   So this is why we thought to have me make the application, because there is no need  as a step parent to indicate his marital status anywhere in writing nor proving the child's legitimacy as they don't care if your stepchild was born in or out of wedlock, just that he or she is the biological child of your spouse. There are plenty of cases in this forum like that where the child was born in a non-marital relationship and no one bats an eyelid. And normally the parent's name on a birth certificate is sufficient proof of that. If they want a DNA test, they can have one.   Would the consular officer know that he was married? Of course, we can't hide that and we have no intention of trying to do so. But these consular officers also have the ability to make a decision one way or the other based on the circumstances presented. Otherwise my friend's husband who HAD practiced bigamy and admitted it during the interview would not have been given his CR-1 visa. But he wasn't a citizen yet either so he also was not subject to any penalties of US law either if they had decided not to.   Yes immigrant visas are intended for people who plan to reside in the US. The catch here is thought the law says that children who meet these conditions are considered citizens from the moment of entry. So although it is an IR-2 visa and 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. The child never would actually reside in the US on said visa. It would expire as soon as they entered, and they would never be even eligible for a green card.    

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.