Wife and son came on a tourist visa

[canadian_wife 1,818]

He is born in the UK and has a UK passport and is not a US citizen,I am not sure how you understood that.

You aren't sure how we undersood that? You are his father, you are a USC, we are assuming that you meet the residency requirements and thus, your son is a US citizen as well. No visa for him, no adjustment of status. Your wife needs to return to the UK and file a CRBA to have the child's passport

Good luck

[Nich-Nick 3,354]

My wife and I were married in the UK last year, and I came back to the States - so she came on a ESTA tourist visa with my son - who was born in the UK.

My son is here in the states, came with my wife but was born in the UK.

Can I get a US passport for him here in the states and then file the spouse visa petition while they are here?

You can't do a Consular Report of Birth Abroad except in the UK. However, in the US, you can apply for a certificate of citizenship--

Certificate of Citizenship Issued by U.S. Citizenship & Immigration Services (USCIS)

The Consular Report of Birth and the Certificate of Citizenship are equally acceptable as proof of U.S. citizenship. An application for a Certificate of Citizenship may be submitted in the United States at the nearest office of the Department of Homeland Security’s U.S. Citizenship & Immigration Services.

The application and instructions are here http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1c59ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

With that certificate, the baby can get a US passport and doesn't need a greencard . I agree that you and wife can file the I-130 and I-485 concurrently in the US to obtain her greencard without her returning to the UK.

[DandT14 272]

OP, you should answer Vanessa&Tony's question. Was your wife asked any questions when entering? It's important.

If it was just AOS for your wife, I'd tell you to go for it. But your child should have had a US passport to enter the country. You're getting such a variety of answers here as to the correct course of action that I think you'd be better off talking to an attorney.

It sounds like you don't want them to return to the UK. And maybe they can stay, but you better be very sure how to handle the citizenship issue for your child before you file anything.

[Hypnos 6,576]

ESTA is not a visa, it's an authorization for visa-free entry for tourism purposes. It's called the visa waiver program, and one of the things you waive by entering is the right to adjust status, the right to file for extensions and the right to appeal any decision.

On paper, it is thus not possible to adjust status. In reality, many USCIS local offices turn the other cheek and do it anyway.

You are mistaken.

There is a specific provision allowing immediate relatives of a US citizen to adjust status, even when entering on the VWP. Immediate relatives = spouse of, minor child (under 21) of, parent of or widow/er of (if within two years of spouse's death) a US citizen.

Other than that, the advice here has been fairly solid. Having your son enter the US on a foreign passport when he has a claim to US citizenship could be a problem, and in your position I would at least have a consultation with an immigration attorney to explore any issues that could arise from that.

Your wife can either remain and then you file for AoS for her (using this guide: http://www.visajourn...page=i130guide2) or you can file for a CR-1 / IR-1 immigrant visa for her. She would need to return to the UK and this would take approximately 8 - 10 months to process before the visa was in her hands. If you file for AoS for her then there is no appeal from any denial as stated, since she entered on the VWP which prohibits appeals of any unfavourable decisions.

Edited October 7, 2012 by Hypnos

[VanessaTony 3,567]

You are mistaken.

There is a specific provision allowing immediate relatives of a US citizen to adjust status, even when entering on the VWP. Immediate relatives = spouse of, minor child (under 21) of, parent of or widow/er of (if within two years of spouse's death) a US citizen.

Other than that, the advice here has been fairly solid. Having your son enter the US on a foreign passport when he has a claim to US citizenship could be a problem, and in your position I would at least have a consultation with an immigration attorney to explore any issues that could arise from that.

Your wife can either remain and then you file for AoS for her (using this guide: http://www.visajourn...page=i130guide2) or you can file for a CR-1 / IR-1 immigrant visa for her. She would need to return to the UK and this would take approximately 8 - 10 months to process before the visa was in her hands. If you file for AoS for her then there is no appeal from any denial as stated, since she entered on the VWP which prohibits appeals of any unfavourable decisions.

Agreed. The main issue will be the child I think so a consultation with an immigration attorney would be best before any decision making (and before they overstay their entry)

[VanessaTony 3,567]

He is born in the UK and has a UK passport and is not a US citizen,I am not sure how you understood that.

He IS a USC as long as you pass the residence requirements, he just doesn't have proof of that status yet. You know about CRBA which means you know you need to file his paperwork.

Honestly while it's POSSIBLE to AOS from your wife's status, I wouldn't simply because of the child and the murky water around that. The assumption of immigration intent is enormous in this sort of case, and while that ALONE can't be used against them, it is a negative.

Edited October 8, 2012 by Vanessa&Tony

[EM_Vandaveer 2,408]

He IS a USC as long as you pass the residence requirements, he just doesn't have proof of that status yet. You know about CRBA which means you know you need to file his paperwork.

Honestly while it's POSSIBLE to AOS from your wife's status, I wouldn't simply because of the child and the murky water around that. The assumption of immigration intent is enormous in this sort of case, and while that ALONE can't be used against them, it is a negative.

You said intent alone can't be used against them. What else could cause problems? Obviously, having a child together speaks of the bona fide of the marriage, right? (I am not saying that that's the only proof they need, but it's a good piece of evidence.) They also lived together in the UK, the wife is not from a high fraud country.

Seems pretty straightforward to me.

Edited October 8, 2012 by EM_Vandaveer

[VanessaTony 3,567]

You said intent alone can't be used against them. What else could cause problems? Obviously, having a child together speaks of the bona fide of the marriage, right? (I am not saying that that's the only proof they need, but it's a good piece of evidence.) They also lived together in the UK, the wife is not from a high fraud country.

Seems pretty straightforward to me.

No, having a child isn't proof of their relationship. Unless there's DNA evidence it's proof SHE had sex. With DNA evidence it's proof THEY had sex. There's a topic in "Effects" where the woman had the child and then left her guy called "she cheated while pregnant". It's an example of why kids aren't proof of a bonafide relationship. It's a positive factor, but not the sole reason for an approval. That and people get knocked up from one-night stands all the time, doesn't prove anything.

There's lots of things that could cause problems, I don't know their personal situation. But like I said in a previous response, the child is a USC, entering on a non-USC passport isn't legal. The guy KNOWS his child has the ability to get his passport because he's mentioned CRBA. This is the biggest problem, it looks like they are deliberately trying to circumvent rules and waiting times.

Plenty of people do it without issue though - it's up to them to decide whether the risk is worth it. Often staying in your home country to process is much simpler then returning after months and months of being away, after giving up a job, a place to live etc. Had I been denied I would just move back in with my parents, but I don't have a kid which I think makes it 20000000 times harder to uproot. Either he would be without his wife and kid for months on end (a year is a possibility), or she'd have to leave the kid and be without both of them. And she wouldn't have access to the VWP anymore, and she wouldn't get a B2 approved because of immigrant intent. It also matters what was asked of her at the border and what her replies were. If she was asked "why are you here?" her answer to that qn is important.

Honestly though, the main piece of advice is - see a lawyer. Discuss with that lawyer. Talk to another lawyer, discuss with that one. Don't just listen to the one that gives the answer that you want to hear the most, or who charges the least, or who makes the biggest promises.

Edited October 8, 2012 by Vanessa&Tony

[Brother Hesekiel 2,236]

Jordan,

ESTA is an electronic system authorizing visa free travel as part of the Visa Waiver Program (VWP) for short visits up to 90 days. Entering the United States on a non-immigrant visa -- or no visa, i.e., on the VWP -- is immigration fraud. Immigration fraud is reason to tell your British wife to never show her face on US soil again in this lifetime. In addition, there is no appeal on this for people who try to file for Adjustment of Status without a visa. Part of the electronic I-94W is that the intending traveler -- your wife -- accepts that the word of the I.O. is like the word of God for her. So if the I.O. doesn't like your wife's accent, it's off to the airport and off she goes to the Kingdom.

While it's possible that everything would work out just fine, why taking such a risk? Better is it for you to file an I-130 now, and then you wife will have her interview in London and receive her immigrant visa. The moment she arrives in the U.S. and gets "admitted" she'll be a Green Card holder.

Your son is a US citizen, as long as you have lived for 5 years in the U.S. before he was born. Two of these 5 years need to be after your 14th birthday. If that's the case, your son is required to enter and the exit the U.S. with a US passport. Since your son can't be held liable for his actions yet, they will grab your wife and shake her a bit. She's the one to blame. And you, of course.

Tony and Vanessa's advice is good. Don't play Russian Roulette if you don't have to. Your wife will have to return to the U.K anyway, unless you have already given up your flat, in which case your wife's fraudulent entry would actually be documented. Play it safe and enjoy sleeping soundly during this stressful time.

[Hypnos 6,576]

You are making assumptions.

Entering the US on a nonimmigrant visa would constitute visa fraud if, at the time of entry, it was their intention to have her remain. Perhaps it was just to visit his homeland and then they decided to stay; perhaps a circumstance changed which he has not stated; heck, perhaps they really like the food here.

Either way, scare stories are not the way to go. I have already debunked one post containing false information on this thread. Give the OP the facts and then let him decide for himself.

Thousands of people have successfully adjusted from the VWP without issue and no doubt thousands more will continue to so whilst an exception is permitted for immediate relatives to adjust. Now, knowing that there is no appeal from a potential denial, if the OP wants to continue the balance of probabilities says he will likely succeed, unless there is a significant negative factor that he has so far neglected to mention.

I would be more concerned about the son entering on a foreign passport. That is the principle topic that I would consult an immigration attorney for if I were in the OP's shoes. Of course, while there it wouldn't hurt to discuss his wife's situation too, since the circumstances are related.

[Nich-Nick 3,354]

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.

[ceadsearc 516]

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.

US citizens have to use US passports when entering the US. It's mentioned on this page but I don't have a link to the exact law. http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html

But, basically, a US citizen needs a US passport. The other issue in this is that the child not only didn't use a US passport but presumably implied to CBP that they weren't a USC or eligible to be one, since otherwise they wouldn't have been let in on VWP.

[Moomin 292]

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.

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4140.html

section 215(b)

It's not that a British infant can't enter on a British passport. It's that a US person can't enter without a US passport. At least that's what I got out of it.

[EM_Vandaveer 2,408]

No, having a child isn't proof of their relationship. Unless there's DNA evidence it's proof SHE had sex. With DNA evidence it's proof THEY had sex. There's a topic in "Effects" where the woman had the child and then left her guy called "she cheated while pregnant". It's an example of why kids aren't proof of a bonafide relationship. It's a positive factor, but not the sole reason for an approval. That and people get knocked up from one-night stands all the time, doesn't prove anything.

There's lots of things that could cause problems, I don't know their personal situation. But like I said in a previous response, the child is a USC, entering on a non-USC passport isn't legal. The guy KNOWS his child has the ability to get his passport because he's mentioned CRBA. This is the biggest problem, it looks like they are deliberately trying to circumvent rules and waiting times.

Plenty of people do it without issue though - it's up to them to decide whether the risk is worth it. Often staying in your home country to process is much simpler then returning after months and months of being away, after giving up a job, a place to live etc. Had I been denied I would just move back in with my parents, but I don't have a kid which I think makes it 20000000 times harder to uproot. Either he would be without his wife and kid for months on end (a year is a possibility), or she'd have to leave the kid and be without both of them. And she wouldn't have access to the VWP anymore, and she wouldn't get a B2 approved because of immigrant intent. It also matters what was asked of her at the border and what her replies were. If she was asked "why are you here?" her answer to that qn is important.

Honestly though, the main piece of advice is - see a lawyer. Discuss with that lawyer. Talk to another lawyer, discuss with that one. Don't just listen to the one that gives the answer that you want to hear the most, or who charges the least, or who makes the biggest promises.

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.

[EM_Vandaveer 2,408]

Jordan,

ESTA is an electronic system authorizing visa free travel as part of the Visa Waiver Program (VWP) for short visits up to 90 days. Entering the United States on a non-immigrant visa -- or no visa, i.e., on the VWP -- is immigration fraud. Immigration fraud is reason to tell your British wife to never show her face on US soil again in this lifetime. In addition, there is no appeal on this for people who try to file for Adjustment of Status without a visa. Part of the electronic I-94W is that the intending traveler -- your wife -- accepts that the word of the I.O. is like the word of God for her. So if the I.O. doesn't like your wife's accent, it's off to the airport and off she goes to the Kingdom.

While it's possible that everything would work out just fine, why taking such a risk? Better is it for you to file an I-130 now, and then you wife will have her interview in London and receive her immigrant visa. The moment she arrives in the U.S. and gets "admitted" she'll be a Green Card holder.

Your son is a US citizen, as long as you have lived for 5 years in the U.S. before he was born. Two of these 5 years need to be after your 14th birthday. If that's the case, your son is required to enter and the exit the U.S. with a US passport. Since your son can't be held liable for his actions yet, they will grab your wife and shake her a bit. She's the one to blame. And you, of course.

Tony and Vanessa's advice is good. Don't play Russian Roulette if you don't have to. Your wife will have to return to the U.K anyway, unless you have already given up your flat, in which case your wife's fraudulent entry would actually be documented. Play it safe and enjoy sleeping soundly during this stressful time.

Wrong. It's fraud if there is intent at POE to AOS later on. It's not fraud to have intent to marry, but not to AOS (my own case is one of these), / no intent of marriage or AOS AT THE TIME OF POE.

Circumstances change, and the law specifically allows immediate relatives of USCs to AOS from VWP/other visas, if there was no such intent at POE.

Also, if it obvious that there was intent, this in itself, without other negative factors, is NOT enough ground for denial.

As to the boy, they made a mistake, they have to rectify it. It is quite likely that they thought that the boy did not have a claim to USC/that they did not know about the requirement that USCs HAVE to use a US passport to enter the US.

I still think that they should schedule an Infopass, and go from there. Maybe it's enough to file an N-600 and explain the mistake they made in a cover letter.

Edited October 9, 2012 by EM_Vandaveer