Wife and son came on a tourist visa

[AnotherLostSoul 167]

To me it seems this thread has came to its end. You should either call USCIS and ask them what you should do, or get an immigration attorney. Sure you'll have to pay but you don't want to go back to the UK with your wife and son and do the "regular process" so might as well time to hire an immigration attorney and ask them out what you should do. As you read the responses, it is becoming pretty clear (to me, at least) that no one can give you a definite answer and it just became an on and on dragging discussion who is right, who is wrong, why something is a fraud, or why the other person is wrong for thinking that etc. Clearly, that's helping none to you, and certainly reading the back and forth "arguments" does not help anyone else. As you see, your cause needs more than just average people here who are going through the regular processes. People have mentioned the regular option to you, but you don't want that. I think it is time to end this thread and you go get an immigration attorney who will give you advice.

Good luck! All the best!

[Dakine10 5,452]

Can somebody point me to the law saying a British infant can't enter the US on a British passport? He is a British citizen at this time. I'm just curious about this topic, not arguing the point and want to learn more from the source.

A few years ago this would have worked. One of the exeptions to 215(b) was that dual national children under 12 were allowed to enter the US if listed on their parents passport. In this case a dual national UK/US child could have entered the US on the non USC parent's British passport.

They removed this exception from 22 CFR in 2011 since children entering the US by air travel are now required to have their own passports.

[VanessaTony 3,567]

While what you are saying IS true, when was the last time that you heard of USCIS asking for a DNA test in an AOS or RoC case? It seems to me that when there is financial co-mingling evidence present as well, they just assume that the birth certificate is actually saying the truth. Also, "birth certificate of children" (born to the marriage) is listed as a proof in AOS and RoC cases. If it is not proof of bona fide marriage, why is it listed? "Little baby, big proof."-it's actually a saying lawyers use.

Again, I emphasize, having a child together IN ITSELF does not prove anything, but if both parents are involed in the child's life AND there is other bona fide evidence, than it is pretty useful.

That's why I said "It's a positive factor, but not the sole reason for an approval."

you're confusing two issues. He had the child enter on a foreign passport when the child has a claim to a US passport (which the OP knows he does) which is frowned upon. He had the mother and child enter as visitors (and again I say it matters what was said at the border) and now he wants to file AOS for the mother. The addition of the child adds huge immigration intent assumption but like I said, it alone can't be use. The positive factor of the child alone isn't enough for approval. Sure they might have other evidence of relationship but when there's no ability of appeal I would most definitely seek a consultation with a couple of lawyers before making a decision.

**Edit - re the DNA. I do recall a case where the mother was applying for a visa and she was made to get DNA for the child she claimed was her USC husbands. It wasn't related to the visa application and I recall the USC father was really annoyed about it because he didn't think it was relevant but they wouldn't approve her visa without that DNA.

Edited October 9, 2012 by Vanessa&Tony

[rochel 0]

what if the parents don't want to make the child a US citizen ? if the parents don't ask for the child to become a us citizen its their right ? (that is just an example, not saying that is what they want of course)... I know the case with my husband's mother not being an american citizen, it makes him automatically a citizen of where she was born, and he does not want this citizenship (never asked for it)... ?

[VanessaTony 3,567]

what if the parents don't want to make the child a US citizen ? if the parents don't ask for the child to become a us citizen its their right ? (that is just an example, not saying that is what they want of course)... I know the case with my husband's mother not being an american citizen, it makes him automatically a citizen of where she was born, and he does not want this citizenship (never asked for it)... ?

The difference is the child IS a USC, just doesn't have proof of it. US laws state a USC must enter and leave the US on a US passport. The child is a USC (without documentation but still a USC per US law).

I don't know if your husbands other nationality has a similar law. I know that another member's wife had issues with Columbia. She entered Columbia on her US passport and because it says she's Columbian they wanted to see her Columbian stuff.. it was a bit of a mess. He started a topic about whether you could ask not to have your other nationality on your US passport to avoid such issues.

If the child stayed overseas it's not a big deal. But if that child ever tried to immigrate, say they had a US spouse, as soon as they disclosed their parent was a USC they would be told a visa wasn't available to a USC and that they have to claim their citizenship (as long as it's not past any deadlines).

Fun hey!

Edited October 9, 2012 by Vanessa&Tony

[EM_Vandaveer 2,387]

That's why I said "It's a positive factor, but not the sole reason for an approval."

you're confusing two issues. He had the child enter on a foreign passport when the child has a claim to a US passport (which the OP knows he does) which is frowned upon. He had the mother and child enter as visitors (and again I say it matters what was said at the border) and now he wants to file AOS for the mother. The addition of the child adds huge immigration intent assumption but like I said, it alone can't be use. The positive factor of the child alone isn't enough for approval. Sure they might have other evidence of relationship but when there's no ability of appeal I would most definitely seek a consultation with a couple of lawyers before making a decision.

**Edit - re the DNA. I do recall a case where the mother was applying for a visa and she was made to get DNA for the child she claimed was her USC husbands. It wasn't related to the visa application and I recall the USC father was really annoyed about it because he didn't think it was relevant but they wouldn't approve her visa without that DNA.

Ok, we agree on the other issues. Yes it is important what was said at POE and what was recorded by the CBP officer.

re: the DNA. In several VISA cases there was a request for DNA testing, but I can't recall the same for any AOS or ROC case.

[Dakine10 5,452]

Ok, we agree on the other issues. Yes it is important what was said at POE and what was recorded by the CBP officer.

re: the DNA. In several VISA cases there was a request for DNA testing, but I can't recall the same for any AOS or ROC case.

Your earlier post regarding evidence was correct. As a matter of protocol, DNA testing is usually only required if there is a lack of evidence to show a relationship to the child. I haven't heard of it being required in cases where there is sufficient evidence of relationship to the child, such as travel, photos, marriage and birth documents and so forth.

That said, genetic testing is the gold standard now in prooving a relationship to the child, and USCIS will require it if there is any doubt to the relationship between father and child. I wouldn't be surprised to see it used more as it becomes less expensive and logistically more feasable to do.