CRBA proof of physical presence alternate solution

[M.umar 1]

My wife is a US citizen residing outside the US and I have recently received my immigrant visa. She came back to her home country when she was 13 years old for family as well as educational purposes. As she was a minor, she did not work nor pay any taxes during her stay in the US. She continued her studies abroad and only had a chance to visit US once for a vacation which lasted for about 3-4 months after the age of 14 years. Fortunately after a few months of marriage we realized we are pregnant. Unfortunately my wife does not have enough physical proof of presence in the US i.e 5 years of stay in US two of which are after the age of 14 years, in order to fulfill the requirements of CRBA. Is there any we can overcome this problem? What is the easiest and shortest way to take my baby along with us to the US as my visa expires in March?

[teeak 224]

There seems to be statutes stating if the child's grandparent meets the physical requirement if the parent doesn't then they can still obtain citizenship. '

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter5.html

[Mark88 184]

This might help you:

http://www.visajourney.com/forums/topic/431566-our-story-crba-for-our-child-denied-entering-the-us-with-a-baby-transportation-letter-and-citizenship-through-the-cca/

[newacct 688]

My wife is a US citizen residing outside the US and I have recently received my immigrant visa. She came back to her home country when she was 13 years old for family as well as educational purposes. As she was a minor, she did not work nor pay any taxes during her stay in the US. She continued her studies abroad and only had a chance to visit US once for a vacation which lasted for about 3-4 months after the age of 14 years. Fortunately after a few months of marriage we realized we are pregnant. Unfortunately my wife does not have enough physical proof of presence in the US i.e 5 years of stay in US two of which are after the age of 14 years, in order to fulfill the requirements of CRBA. Is there any we can overcome this problem? What is the easiest and shortest way to take my baby along with us to the US as my visa expires in March?

It sounds like your wife has not been physically present in the US for 2 years since turning 14; if so, it's not an issue of not having "proof", but rather, the conditions are actually, truthfully not satisfied. The child will not have US citizenship at birth. The way to have the child immigrate to the US is for your wife to petition the child to immigrate with I-130 (like she petitioned you). When the child enters the US with an immigrant visa and becomes a permanent resident, he/she will also automatically become a US citizen.

[M.umar 1]

It sounds like your wife has not been physically present in the US for 2 years since turning 14; if so, it's not an issue of not having "proof", but rather, the conditions are actually, truthfully not satisfied. The child will not have US citizenship at birth. The way to have the child immigrate to the US is for your wife to petition the child to immigrate with I-130 (like she petitioned you). When the child enters the US with an immigrant visa and becomes a permanent resident, he/she will also automatically become a US citizen.

I dropped the same query to CBP, below is the response:

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents.

Now from this, what i understand is that i have 2 ways to bring my child to US. File N-600k incase CRBA get denied or i can ask for a transportation letter from the embassy. Any one with the same experience?

[M.umar 1]

This might help you:

http://www.visajourney.com/forums/topic/431566-our-story-crba-for-our-child-denied-entering-the-us-with-a-baby-transportation-letter-and-citizenship-through-the-cca/

But in your scenario your wife had stayed abroad for less than a year, but my wife came back when she was 13 years old, she did pay a visit to the US but it was for a short period of time. Also i contacted CBP and explained the situation, below is a response from them

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents.

Which means my wife does not need to file i-130 for my child. Other way around is to show the grand parents physical presence evidence at the time of CRBA and see what happens.

[Mark88 184]

But in your scenario your wife had stayed abroad for less than a year, but my wife came back when she was 13 years old, she did pay a visit to the US but it was for a short period of time.

You missed the point. Your wife IS a USC, mine is NOT. That's the key.

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents.

Which means my wife does not need to file i-130 for my child. Other way around is to show the grand parents physical presence evidence at the time of CRBA and see what happens.

Best option is to clear it with the embassy and, after CRBA denial, you can get a BTL. The grandparents physical presence will NOT help you for the CRBA. You will have to file N-600K and this will take almost a year to process.

[newacct 688]

I dropped the same query to CBP, below is the response:

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents.

Now from this, what i understand is that i have 2 ways to bring my child to US. File N-600k incase CRBA get denied or i can ask for a transportation letter from the embassy. Any one with the same experience?

First of all, forget about CRBA. Your child is factually not a US citizen at birth. CRBA is only for people who are US citizens at birth. There is no grey area here. CRBA is completely not applicable to your child. The only reason to apply for it may be to get a denial in case it is needed to get a US visa.

N-600K is also not applicable. The INA 322 process is for children who will remain residing outside the US. The INA 322 process requires that, after the N-600K is approved, that the child get a nonimmigrant visa, usually B2, to visit the US to get naturalized. B2 visa requires no immigrant intent. As your child is planning to relocate to the US, he/she will get denied for B2. So this will not work.

You are referring to the regulation that a US permanent resident or US national mother who gives birth while on a temporary visit abroad, can bring the child back to the US while under age 2 on either parent's first trip back to the US after the birth, and the child will be exempt from needing an immigrant visa. The mother in this case (your wife) is a US citizen in this case, so is technically a US national. But your wife are not on a temporary visit abroad -- she has been residing abroad for a while. So I don't think this is applicable.

[Mark88 184]

First of all, forget about CRBA. Your child is factually not a US citizen at birth. CRBA is only for people who are US citizens at birth. There is no grey area here. CRBA is completely not applicable to your child. The only reason to apply for it may be to get a denial in case it is needed to get a US visa.

Newacct is right, you will only need the CRBA for a formal denial to have a US visa issued.

A USC can not have a US visa issued, so that's why you need the denial.

N-600K is also not applicable. The INA 322 process is for children who will remain residing outside the US. The INA 322 process requires that, after the N-600K is approved, that the child get a nonimmigrant visa, usually B2, to visit the US to get naturalized. B2 visa requires no immigrant intent. As your child is planning to relocate to the US, he/she will get denied for B2. So this will not work.

USE will issue B-2's in this case. The purpose is not to seek intent to immigrate, but to accuire USC. Whatever you do after you(r child) becomes a USC is your business. And life plans change: One day you don't want to live in the US, the next day you do. And as you USC that is your right.

Besides, other countries (i.e. ESTA) don't even need a visa to legally enter the USA.

You are referring to the regulation that a US permanent resident or US national mother who gives birth while on a temporary visit abroad, can bring the child back to the US while under age 2 on either parent's first trip back to the US after the birth, and the child will be exempt from needing an immigrant visa. The mother in this case (your wife) is a US citizen in this case, so is technically a US national. But your wife are not on a temporary visit abroad -- she has been residing abroad for a while. So I don't think this is applicable.

As the CBP pointed out though, it looks like he is still entitled to a BTL though:

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents.

We stil don't know from the OP if the baby was born before or after the issuance of his US visa. The law only mentiones a "parent" not a just a mother.

If the child was born after the issuance, the OP can get a BTL (as 9Fm 42.1 N1.1 describes), if it was born before the issuance, the child needs its own I-130 petiton. I heard of cases you can add the child to the pending petition, but this will only work if the visa has not been issued yet.

[newacct 688]

USE will issue B-2's in this case. The purpose is not to seek intent to immigrate, but to accuire USC. Whatever you do after you(r child) becomes a USC is your business. And life plans change: One day you don't want to live in the US, the next day you do. And as you USC that is your right.

If the family is not relocating to the US, then yes. But here the OP says they are relocating to the US. 9 FAM 41.31 N14.6-3 clearly says that the child would not qualify for a B2 visa for naturalization if the family is relocating to the US; in that case an immigrant visa is required.

As the CBP pointed out though, it looks like he is still entitled to a BTL though:

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents. [/size]

We stil don't know from the OP if the baby was born before or after the issuance of his US visa. The law only mentiones a "parent" not a just a mother.

If the child was born after the issuance, the OP can get a BTL (as 9Fm 42.1 N1.1 describes), if it was born before the issuance, the child needs its own I-130 petiton. I heard of cases you can add the child to the pending petition, but this will only work if the visa has not been issued yet.

You are right. I forgot about the difference between the provision for birth after getting permanent residency (only applies for a mother), and birth after getting an immigrant visa and before entering (applies to either parent).

[M.umar 1]

Newacct is right, you will only need the CRBA for a formal denial to have a US visa issued.

A USC can not have a US visa issued, so that's why you need the denial.

USE will issue B-2's in this case. The purpose is not to seek intent to immigrate, but to accuire USC. Whatever you do after you(r child) becomes a USC is your business. And life plans change: One day you don't want to live in the US, the next day you do. And as you USC that is your right.

Besides, other countries (i.e. ESTA) don't even need a visa to legally enter the USA.

As the CBP pointed out though, it looks like he is still entitled to a BTL though:

Pursuant to 9 FAM 42.1 N1.1, a child born after the issuance of an immigrant visa to a parent is not required to have a visa if the child is born subsequent to the issuance of an immigrant visa to the accompanying parent and within the validity period of the parent’s immigrant visa. The child will, however, likely need a transportation document or other documentation from the U.S. Embassy/U.S. Consulate to be able to board the plane and accompany you. CBP does not issue transportation letters or other travel documents.

We stil don't know from the OP if the baby was born before or after the issuance of his US visa. The law only mentiones a "parent" not a just a mother.

If the child was born after the issuance, the OP can get a BTL (as 9Fm 42.1 N1.1 describes), if it was born before the issuance, the child needs its own I-130 petiton. I heard of cases you can add the child to the pending petition, but this will only work if the visa has not been issued yet.

From all the discussion above i have incurred that BTL is the only way out. I cannot go down the N-600k path since we permanently plan to move to US. I cannot file CRBA because my spouse doesn't fill the conditions. Just to clear, i have received my US visa, therefore the baby is born after it. So what is my best option? Still confused

[M.umar 1]

First of all, forget about CRBA. Your child is factually not a US citizen at birth. CRBA is only for people who are US citizens at birth. There is no grey area here. CRBA is completely not applicable to your child. The only reason to apply for it may be to get a denial in case it is needed to get a US visa.

N-600K is also not applicable. The INA 322 process is for children who will remain residing outside the US. The INA 322 process requires that, after the N-600K is approved, that the child get a nonimmigrant visa, usually B2, to visit the US to get naturalized. B2 visa requires no immigrant intent. As your child is planning to relocate to the US, he/she will get denied for B2. So this will not work.

You are referring to the regulation that a US permanent resident or US national mother who gives birth while on a temporary visit abroad, can bring the child back to the US while under age 2 on either parent's first trip back to the US after the birth, and the child will be exempt from needing an immigrant visa. The mother in this case (your wife) is a US citizen in this case, so is technically a US national. But your wife are not on a temporary visit abroad -- she has been residing abroad for a while. So I don't think this is applicable.

So if every option crosses out then what am i supposed to do???

[Mark88 184]

Baby born after the issuance of visa -> BTL.

[newacct 688]

So if every option crosses out then what am i supposed to do???

Not every option is crossed out. There is the normal option already mentioned -- the US citizen parent petitioning the child and the child going through Consular Processing for an immigrant visa. This is the only option if the child is born before your immigrant visa is issued.

You are right that in the case if the child is born after the issuance of your immigrant visa and before you enter the US, the child can come with you on your entry to the US and be exempt from an immigrant visa. You can get a transportation letter to satisfy the airline.

[M.umar 1]

Baby born after the issuance of visa -> BTL.

can you explain the procedure for BTL?