Spousal I-130 from abroad with surprise baby

[dothehustle 27]

Hey everyone, first time poster. I have a bit of a tricky situation here with no local immigration attorneys, hoping you can help.

 

I am a US citizen living abroad with my wife, and several months ago I filed an I-130 for her. Our plan is to move to the US together if/when she gets a visa. Although I am not currently a resident, I think I will be able to show that we intend to move in the nearby future (by getting a job offer, renting a house, etc.).

 

Wife is now pregnant with our baby, and the due date is 3 months after the estimated I-130 processing date. This baby will not be a US citizen from birth as I have not fulfilled the residency requirements, but will be a US citizen once it is a legal resident due to the Child Citizenship Act (INA Section 322)*.

 

How can we move to the US with our baby? I read somewhere that if a baby is born after the I-130 it can somehow be added, but could not understand the exact process, and if it applies to our case.

* We could also file for citizenship through a N600K form, but this takes a few months (beyond the point when we would have to move to the US) and assumes the child will not be moving to the US

[Trotskor 1]

You are a US citizen. Your child will be a citizen at birth. 

 

Contact your local consulate to see the procedure for declaring a birth abroad. 

Edited September 25, 2018 by Trotskor

[milimelo 4,477]

7 minutes ago, Trotskor said:

You are a US citizen. Your child will be a citizen at birth. 

 

Contact your local consulate to see the procedure for declaring a birth abroad. 

Not true if he doesn’t have requisite number of years in the US after age of 14. 

[dothehustle 27]

7 minutes ago, milimelo said:

Not true if he doesn’t have requisite number of years in the US after age of 14. 

Exactly. I appreciate the quick responses, but as I wrote above the child will not have automatic citizenship (see the USCIS policy manual, Volume 12, Section H, Chapter 3.A, not sure if I am allowed to link to outside sources). Because of this, I cannot fill out a Consular Report of Birth Abroad.

The path to citizenship for the baby is, as far as I understand, making it a lawful permanent resident, which will then grant it citizenship based on Chapter 4. Personally, I find this process a little silly, and most people - including some consular workers - also think the baby is a citizen by birth.

Edited September 25, 2018 by dothehustle

[Trotskor 1]

Read INA 301(g) - if you’ve been present in the US for at least 5 years, of which two were after the age of 14, the child acquired US citizenship in birth during wedlock with an alien mother. 

 

On edit: Are these residency requirements the ones you say you haven’t fulfilled? It’s not 5 consecutive years immediately preceeding the birth, just to be clear. 

Edited September 25, 2018 by Trotskor

[dothehustle 27]

9 minutes ago, Trotskor said:

Read INA 301(g) - if you’ve been present in the US for at least 5 years, of which two were after the age of 14, the child acquired US citizenship in birth during wedlock with an alien mother. 

I thought it's clear from my response that I knew this, but I'll clarify. I was not present in the US for at least 5 years, of which two were after the age of 14. My baby will not acquire citizenship from birth.

 

Edit: I have never lived in the US past the age of 14.

 

Edited September 25, 2018 by dothehustle
Edited after Trotskor's edit

[NikLR 13,227]

Hey so you can file an I-130 for the child and slow down your wife's case at the NVC.  That would likely be your best option since the child will be born before interview. 

[Going through 5,671]

Since the baby does not acquire citizenship at birth, you need to file a separate i-130 for the child.  You can try to request that the child's i-130 is expedited.

Or you can file the baby's i-130, then stall the processing of your wife's i-130 at the NVC stage until the child's petition shows up there too.

[dothehustle 27]

1 minute ago, NikLR said:

Hey so you can file an I-130 for the child and slow down your wife's case at the NVC.  That would likely be your best option since the child will be born before interview. 

 

Just now, Going through said:

Since the baby does not acquire citizenship at birth, you need to file a separate i-130 for the child.  You can try to request that the child's i-130 is expedited.

Or you can file the baby's i-130, then stall the processing of your wife's i-130 at the NVC stage until the child's petition shows up there too.

Thanks guys - this is what I feared. I see now that immediate relative visas do not allow for "derivative beneficiaries" such as the baby. I was hoping for a quicker solution.

Can I apply for an I-130 as soon as the child is born, or must I wait a few months?

Assuming the child is born on January 1, I mail the I-130 the same day, and the USCIS folks are kind enough to expedite: when in your estimation is the soonest the baby's visa will be approved so we can move?

Sorry for all the questions, but we have a lot of planning ahead of us and very little information on the timeline...

[TM92 527]

1 hour ago, dothehustle said:

This baby will not be a US citizen from birth as I have not fulfilled the residency requirements, but will be a US citizen once it is a legal resident due to the Child Citizenship Act (INA Section 322)

Yup. Child will enter the US with an IR-2 visa. Since the child will be under 18 on the day s/he enters the US, and s/he resides in your physical and legal custody at that time, then s/he will become a US citizen under the CCA that same day s/he enters. After his/her US entry, you can choose to obtain a Certificate of Citizenship for him/her by filing an N-600 (https://www.uscis.gov/n-600) at a cost of $1,170, or you can jump directly to obtaining a US passport for him/her. To go straight to a passport, go to https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Child-Citizenship-2000-Sections-320-322-INA.html and select the heading "How does the child get a passport..." and this will explain what to do and the documents you need. For the N-600, even USCIS says it's optional, https://www.uscis.gov/forms/n-600-application-certificate-citizenship-frequently-asked-questions:

Quote

I already have a U.S. passport issued by the Department of State. Am I required to file a Form N-600 for a Certificate of Citizenship?

No. You are not required to file a Form N-600 for a Certificate of Citizenship. The Certificate of Citizenship is an optional form. A validly issued U.S. passport generally serves as evidence of your U.S. citizenship during its period of validity unless that passport has been revoked by the Department of State. However, you may be required to submit your Certificate of Citizenship when attempting to apply for certain other benefits, including, but not limited to:

• Social Security benefits
• State issued ID including a Driver’s License or Learning Permit
• Financial Aid
• Employment
• Passport Renewal

In his/her case, you do NOT need to pay the USCIS Immigrant Fee. You will still get a boilerplate letter from USCIS stating that you should pay for his/her green card. You can disregard that letter.

5 minutes ago, dothehustle said:

Can I apply for an I-130 as soon as the child is born, or must I wait a few months?

As soon as you get a copy of the birth certificate. Here is a guide: https://www.visajourney.com/content/childpet

[Going through 5,671]

12 minutes ago, dothehustle said:

Can I apply for an I-130 as soon as the child is born, or must I wait a few months?

Assuming the child is born on January 1, I mail the I-130 the same day, and the USCIS folks are kind enough to expedite: when in your estimation is the soonest the baby's visa will be approved so we can move?

You will need to submit a copy of the child's birth certificate with the petition, you shouldn't file it before then.

[geowrian 22,337]

Also he will complete an I-864W instead of an I-864/I-864EZ (once the case is at NVC).

[B and A 15]

As an Immediate relative a separate I-130 is required unless the child is born after the immigrant visa is issued. See INA 211(a)(1) In that case the child would be admitted as a permanent resident in code XA3 by CBP at the border. The child would need to have a valid travel document. 

[dothehustle 27]

2 hours ago, B and A said:

As an Immediate relative a separate I-130 is required unless the child is born after the immigrant visa is issued. See INA 211(a)(1) In that case the child would be admitted as a permanent resident in code XA3 by CBP at the border. The child would need to have a valid travel document. 

Very interesting, although probably wouldn't work out for us (the interview would have to be less than a year after NOA1). It seems like there is a special visa/transportation letter for every case besides ours...

 

Academically speaking, if we were to rush the NVC process to get an interview as soon as possible but the interview was still scheduled after the birth, could we stall the interview for a year+? The only information I found on stalling was at the NVC payment stages.