Newborn (abroad) of LPR father, USC mother: Visa waiver possible?

[abumiqdad]

Hi.

A question here. I am reading the guide here (what what had been shared regarding the birth abroad for LPR).

https://fam.state.gov/fam/09FAM/09FAM020102.html

If the father is LPR for a number of years, and the mother is a natural born USC (but cannot pass the citizenship automatically), and the child was born abroad (after the LPR father became a LPR, and before the first return to the USA of the LPR father since the baby was born), would the visa waiver still possible? The language used in the guideline specifically mentioned LPR mother.


9 FAM 201.2-3 IMMIGRANT TRAVEL WITHOUT A VISA

(CT:VISA-364; 05-25-2017)

(3) Certain Alien Children Not Required to Obtain Visas:

(a) The child born after the issuance of a visa to a parent, or a child under two years of age born of a Lawful Permanent Resident alien mother during a temporary visit abroad, is not required to have a visa if the child is:

(i) Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent?s immigrant visa; or

(ii) Born during the lawful permanent resident mother?s temporary visit abroad provided that:

? Admission is within 2 years of birth; and

? Either accompanying parent is applying for readmission upon first return after the birth of the child.

(b) Requiring Reentry Document of Child?s Parent: The provisions of 9 FAM 201.2-3 paragraph (3)(a) above apply only if the alien parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), or an SB-1 visa. With respect to 22 CFR 42.1(d), it is irrelevant whether the visa issued to the accompanying parent is an initial visa or a replacement visa.

(c) Evidence of Parent-Child Relationship: To facilitate the admission of children under the provisions of 9 FAM 201.2-3 paragraph (3)(a) above consular officers should instruct parents to have with them documentary evidence of the parent-child relationship.



Does this mean for the above case, since the language used in the guide specifically says it is meant only for LPR mother, the child must be petitioned? Or is there a different interpretation (where LPR mother and father are treated the same - and thus the newborn will still get a visa waiver - and the LPR father can accompany the newborn to the USA)?

[newacct]

Hi.

A question here. I am reading the guide here (what what had been shared regarding the birth abroad for LPR).

https://fam.state.gov/fam/09FAM/09FAM020102.html

If the father is LPR for a number of years, and the mother is a natural born USC (but cannot pass the citizenship automatically), and the child was born abroad (after the LPR father became a LPR, and before the first return to the USA of the LPR father since the baby was born), would the visa waiver still possible? The language used in the guideline specifically mentioned LPR mother.


9 FAM 201.2-3 IMMIGRANT TRAVEL WITHOUT A VISA

(CT:VISA-364; 05-25-2017)

(3) Certain Alien Children Not Required to Obtain Visas:

(a) The child born after the issuance of a visa to a parent, or a child under two years of age born of a Lawful Permanent Resident alien mother during a temporary visit abroad, is not required to have a visa if the child is:

(i) Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent?s immigrant visa; or

(ii) Born during the lawful permanent resident mother?s temporary visit abroad provided that:

? Admission is within 2 years of birth; and

? Either accompanying parent is applying for readmission upon first return after the birth of the child.

(b) Requiring Reentry Document of Child?s Parent: The provisions of 9 FAM 201.2-3 paragraph (3)(a) above apply only if the alien parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), or an SB-1 visa. With respect to 22 CFR 42.1(d), it is irrelevant whether the visa issued to the accompanying parent is an initial visa or a replacement visa.

(c) Evidence of Parent-Child Relationship: To facilitate the admission of children under the provisions of 9 FAM 201.2-3 paragraph (3)(a) above consular officers should instruct parents to have with them documentary evidence of the parent-child relationship.



Does this mean for the above case, since the language used in the guide specifically says it is meant only for LPR mother, the child must be petitioned? Or is there a different interpretation (where LPR mother and father are treated the same - and thus the newborn will still get a visa waiver - and the LPR father can accompany the newborn to the USA)?

For a baby born after getting permanent residency, it's definitely the mother who must be a permanent resident; the father being a permanent resident doesn't count. However, given that the mother is a permanent resident, either parent (if they are permanent residents) can bring the child back on that parent's first return after the child's birth.

However, the interesting thing is that if you look at the underlying regulation, it actually says if the mother is an LPR or US national (and all US citizens are US nationals; it doesn't say "non-citizen national").

8 CFR 211.1(b)(1):

A waiver of the visa required in paragraph (a) of this section shall be granted without fee or application by the district director, upon presentation of the child's birth certificate, to a child born subsequent to the issuance of an immigrant visa to his or her accompanying parent who applies for admission during the validity of such a visa; or a child born during the temporary visit abroad of a mother who is a lawful permanent resident alien, or a national, of the United States, provided that the child's application for admission to the United States is made within 2 years of birth, the child is accompanied by the parent who is applying for readmission as a permanent resident upon the first return of the parent to the United States after the birth of the child, and the accompanying parent is found to be admissible to the United States.

Taken literally, since your wife is a US citizen (and therefore US national), if she was on a temporary visit abroad when she gave birth, and you (a permanent resident) are returning with the baby within 2 years of birth, on your first return to the US after the birth, this seems to be saying that the baby can enter without an immigrant visa too.

However, I have never seen this section applied to a child born to a US citizen mother, and not only the FAM, but all the other government sources I've seen on this, from USCIS, CBP, consulates, etc. all seem to only mention children born to a US permanent resident mother. So I am not sure what are your chances of success with this logic.

On the other hand, it should be pretty straightforward for your wife to petition the baby to immigrate if this doesn't work.

[abumiqdad]

thanks newacct. that does give me a glimpse of hope - but from what you pasted there, i must prove that my USC wife is on a temporary visit abroad - which is difficult as she had not stepped foot on US soil after her birth (though i am a LPR, and i think i am on a temporary visit abroad as i have entered the USA twice, and 2nd time to get a re-entry permit, just waiting for everyone to get their visa before the move).

The plan was for us to wait for our youngest child to have his petition approved (which is at NVC stage now) and now that we are expecting another one, if this visa waiver does not go through, that means the plan to migrate would be delayed by 1 year after the baby is born (petition approval time for the last one was 8 months to get to NVC stage- and USCIS might put more scrutiny on the 2nd petition as after the 1st one we still have not moved to the USA).

For a baby born after getting permanent residency, it's definitely the mother who must be a permanent resident; the father being a permanent resident doesn't count. However, given that the mother is a permanent resident, either parent (if they are permanent residents) can bring the child back on that parent's first return after the child's birth.

However, the interesting thing is that if you look at the underlying regulation, it actually says if the mother is an LPR or US national (and all US citizens are US nationals; it doesn't say "non-citizen national").

8 CFR 211.1(b)(1):



Taken literally, since your wife is a US citizen (and therefore US national), if she was on a temporary visit abroad when she gave birth, and you (a permanent resident) are returning with the baby within 2 years of birth, on your first return to the US after the birth, this seems to be saying that the baby can enter without an immigrant visa too.

However, I have never seen this section applied to a child born to a US citizen mother, and not only the FAM, but all the other government sources I've seen on this, from USCIS, CBP, consulates, etc. all seem to only mention children born to a US permanent resident mother. So I am not sure what are your chances of success with this logic.

On the other hand, it should be pretty straightforward for your wife to petition the baby to immigrate if this doesn't work.