Best Approach for IR2 application (involves stepchild/polygamy)

[SusieQQQ 11,586]

6 minutes ago, HiFi21 said:

Domicile is not the reason he cannot pass on his citizenship from birth. It's that he is short on the amount of time he actually needed to be physically present in the US. Physical presence and domicile are two separate concepts.

 

Until now, I have not seen any mention on any State Dept or USCIS web sites of domicile or intent to establish domicile as a requirement EXCEPT in connection with the I-864. No mention in connection with the I-130 nor the DS-260.if someone can point me to something contrary to that, I would appreciate it. I'm interested in laws and policy guidelines for visas, not opinions on who should be entitled to citizenship.

 

If the child can get a visa to enter the country, the child is legally entitled to citizenship. Of that I am certain.

 

You can nitpick if you want about the difference between domicile and physical presence, but it’s very clear that they are related in the eyes of uscis. Again, the point is that citizennship is intended to be for people who live in the US, and that family visas are part of that. Do people game the system the way they do with birth tourism? Of course they do, your husband is proof of that as are your intentions. However, you wanted something official to show residence is required for the kid to get citizenship, here you are:

 

This page https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-united-states/after-your-child-enters-united-states is on adoption (which is how most non-resident children of USCs come in) but specifically states it it is applicable to IR2 children as well. Read the section entitled “Your child has not established residency and is therefore not a United States Citizen”, which is already all you need there in the title, but goes on to specifically talk about things such as:

• Your child must actually be residing in the United States after entering with an immigrant visa in order to be a United States Citizen and to receive a Certificate of Citizenship.
• A visit to the United States before returning overseas does not count as residence.
• Intent to permanently reside in the United States is not enough to establish residence in the United States either during or between visits.
• If your child does not actually reside in the United States, then USCIS will mail him or her a permanent resident card, known as a green card, rather than a Certificate of Citizenship.
• Your child must actually reside with a petitioning parent in the United States.

 

This is precisely why such children are issued visas and not automatically given citizenship before they enter.

 

anyway, good luck with your case.

[kris&me 572]

wouldn't he have to prove by DNA this is his child ?

and then how do they explain the bigamy?

[SusieQQQ 11,586]

3 minutes ago, kris&me said:

wouldn't he have to prove by DNA this is his child ?

and then how do they explain the bigamy?

OP seems to think its ok because polygamy is legal where they are.  I'm not so sure USCIS would look favorably on someone who became a citizen and then moved to another country to marry a second wife, but not being aware of any specific law on that, who knows. (I do know that polygamists coming in to the US need to choose one wife because it is against US law, so begs the question of how the husband would address ever returning, presumably divorce wife #2 as she has fulfilled the function of providing a child, or whatever.)

[mlh 93]

18 hours ago, HiFi21 said:

However, we are a bit worried about the last two options nevertheless. Acknowledging paternity under oath seems a bit odd because in this country, a man will only be recognized as a father if he is legally married to the mother, so this might look odd when it is not the normal way here. However, the idea of using his marriage to a second wife as legitimated while still married to me as the grounds of the eligibility also feels a bit odd and we worry if there is some hidden issue that could open him up to problems because his second marriage is not considered valid under US law. I have read that refugees are able to bring their children from their second wives with them to the US on visas so I would presume by the same token, the fact that he is born from a second wife should not be an obstacle in theory. Another issue with the options of him applying are that he would need to sign a paper saying he will support the child until he is 18. Not that it is a problem but I just imagine a scenario where the child has an accident while we are in the US and this could be used to suck our bank accounts dry to pay for the hospital bills or something.

 

An aside, God forbid, but IF this were to happen, who would you expect to be responsible for those bills? 

 

As parents, this would be no different to the rest of us that live today in the US and are responsible for medical bills incurred by us or our children.  Yes, for some, that means that it is government aided by medicare, medicaid, CHIP, etc. but we are still responsible for applying for those things as assistance.  This would still be the case if you moved here with the child to live, rather than a quick in and out visit to try to obtain citizenship...

[Boiler 45,541]

Is Residence in the U.S. Required for the U.S. Sponsor?

Yes. As a U.S. sponsor/petitioner, you must maintain your principal residence (also called domicile) in the United States, which is where you plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions. 

 

Not aware that this is an exception.

 

 

[mushroomspore 3,044]

3 hours ago, HiFi21 said:

 

And just to add, the government has no right once someone is a US citizen to force them to stay on US soil, so it makes me wonder why they would care? There's plenty of women who come to the US on tourist visas pregnant and then take the next plane back to their country with their new little American baby.

No, the government can't force US citizens to stay. But they CAN strip citizenship from anyone who is discovered to have misrepresented themselves at any point during the immigration process. The whole "anchor baby" scenario is totally different from what you're wanting to do. Those babies are born in the US. Your kid was not. 

 

I admittedly don't know much about the IR-2 visa and have only seen it in conjunction with IR-1 applications. Regardless IR-2 visas require a consular intervuew and I would not imagine that it would go over well for the consular officer to hear, "Well we don't want to reside in the US. We just want the kid to get a US passport." Your situation's very unique with a lot of complex factors. If it weren't for the bigamy and say the kid was from a previous marriage, this wouldn't be so difficult. Which is why everyone's saying to talk to a lawyer.

Edited September 27, 2018 by mushroomspore

[mushroomspore 3,044]

1 hour ago, SusieQQQ said:

You can nitpick if you want about the difference between domicile and physical presence, but it’s very clear that they are related in the eyes of uscis. Again, the point is that citizennship is intended to be for people who live in the US, and that family visas are part of that. Do people game the system the way they do with birth tourism? Of course they do, your husband is proof of that as are your intentions. However, you wanted something official to show residence is required for the kid to get citizenship, here you are:

 

This page https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-united-states/after-your-child-enters-united-states is on adoption (which is how most non-resident children of USCs come in) but specifically states it it is applicable to IR2 children as well. Read the section entitled “Your child has not established residency and is therefore not a United States Citizen”, which is already all you need there in the title, but goes on to specifically talk about things such as:

• Your child must actually be residing in the United States after entering with an immigrant visa in order to be a United States Citizen and to receive a Certificate of Citizenship.
• A visit to the United States before returning overseas does not count as residence.
• Intent to permanently reside in the United States is not enough to establish residence in the United States either during or between visits.
• If your child does not actually reside in the United States, then USCIS will mail him or her a permanent resident card, known as a green card, rather than a Certificate of Citizenship.
• Your child must actually reside with a petitioning parent in the United States.

 

This is precisely why such children are issued visas and not automatically given citizenship before they enter.

 

anyway, good luck with your case.

Yup I just looked at the I-864W and it basically says the same thing on the first page. I-864W MUST be filed with an immigrant visa application IF the intending immigrant is a child who will become a citizen after entry (this is just one category, of course). It goes on to say the child will become a citizen if: 1. One parent is a US citizen; 2. Child is under 18; 3. Child is residing in the US with the US parent.

 

I will also point out the obvious fact that the all IR visas are IMMIGRANT visas. Meaning, they are for those who fully intend to reside in the US.

Edited September 27, 2018 by mushroomspore

[JFH 12,190]

All I can think is that surrogacy or adoption would have been much simpler.

 

If you have no intentions of living in the USA, why does the child even “need” US citizenship? It sounds like it’s more for your convenience, not because you feel any loyalty or connection to the country. You are also saddling your child with the requirement to report his income for his entire adult life to a government of a county that he has never lived in or feels any allegiance to. And then there’s the matter of selective service, since the child is male. 

 

I’m also in agreement with the previous poster who was surprised by your comment about being responsible for medical bills, should an illness or injury befall the child in the few weeks it takes to get a passport delivered (it seems that’s the maximum amount of time you intend to be here). That’s part of being a parent! Surely you took this unorthodox and lengthy process to become parents because you wanted to care for and provide for another human being. This child wasn’t the result of a drunken fumble with a stranger. He was very much planned and wanted, by your own admission. You must have prepared for and considered the financial responsibility that bring a parent involves? 

[HiFi21 5]

 

The rules for adoption are different from biological children of American citizens. I am not even going to bother with addressing that list.

 

My husband entered the US as an immigrant and signed a paper saying he was not coming to practice bigamy. And indeed, he did not violate any laws because it was not his intention at the time. And he became a citizen not having practiced bigamy.

 

We had infertility issues though after we returned to his country and adoption is not legal here, nor is surrogacy. We had no other options. So we made this decision long after he became a US citizen.

 

Now, his marriage to the other wife is considered null and void under US law, but he has not violated any laws in marrying her either. You can only be prosecuted for bigamy practiced outside the US as a citizen if you try to claim some sort of benefit for the other wife herself in the US, which he has no plans to do. SHE actually would not be eligible for immigration herself too as she knowingly engaged in polygamy.

 

As for the child, it would be considered legitimate by the US government because for this purpose, the US government only cares if the country in which the child and the parent are currently DOMICILED (yes they assume this is not the US) considers the child to be legitimate. And the child is considered legitimate under local law because the parents' marriage is recognized as valid here.

 

Yes the I-864W says the child must be residing with the parent in the US. But remember they are applying for an immigrant visa, so they aren't already residing there of course. Here's what the law itself says:

Sec. 320. [8 U.S.C. 1431] (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

Quote

 

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

 

(2) The child is under the age of eighteen years.

 

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

 

From their policy manual, slightly different wording:

Quote

A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001: ^[2] 

 

•The child has at least one parent, including an adoptive parent ^[3] who is a U.S. citizen by birth or through naturalization;

 

•The child is under 18 years of age;

 

•The child is a lawful permanent resident (LPR); ^[4] and

 

•The child is residing in the United States in the legal and physical custody of the U.S. citizen parent. ^[

 

Note that it doesn't matter what order these things happen in, just that all these conditions have to be met. There are children who immigrate to the US with an immigrant parent, even under the sponsorship of a stepparent, and when their parents become citizens, they too become citizens. So they fulfill conditions 2-3 and half of 4, but it is only when the parent becomes a citizen that they fulfill the rest.

 

Now, in our case, conditions 1 and 2 are already met, if they receive a visa and are admitted to the US, they fulfill condition 3, and if they have entered the US accompanied by the parent and that parent has legal custody of the child as well, they have now fulfilled all the requirements. I have read of many cases like this and they all say the child is considered a citizen the moment they enter the country and may apply for the passport the next day. There is no length of residency requirement, because if you note, it is AUTOMATIC. They don't have to apply for the passport actually if they don't want to travel again.

 

For me the biggest concern would be my husband filling out the petition because they do ask for the marital status of the petitioner. Under US law, I am his only legal wife, but yet for proving legitimacy as I mentioned above, his second marriage would be relevant. So what would he put down? Either way he might be considered to be lying on the form.

 

So this is why we thought to have me make the application, because there is no need  as a step parent to indicate his marital status anywhere in writing nor proving the child's legitimacy as they don't care if your stepchild was born in or out of wedlock, just that he or she is the biological child of your spouse. There are plenty of cases in this forum like that where the child was born in a non-marital relationship and no one bats an eyelid. And normally the parent's name on a birth certificate is sufficient proof of that. If they want a DNA test, they can have one.

 

Would the consular officer know that he was married? Of course, we can't hide that and we have no intention of trying to do so. But these consular officers also have the ability to make a decision one way or the other based on the circumstances presented. Otherwise my friend's husband who HAD practiced bigamy and admitted it during the interview would not have been given his CR-1 visa. But he wasn't a citizen yet either so he also was not subject to any penalties of US law either if they had decided not to.

 

Yes immigrant visas are intended for people who plan to reside in the US. The catch here is thought the law says that children who meet these conditions are considered citizens from the moment of entry. So although it is an IR-2 visa and the requirements to apply for it are the same as for those who would use it for residence, in effect it is actually only used as an entry permit to the US. The child never would actually reside in the US on said visa. It would expire as soon as they entered, and they would never be even eligible for a green card.

 

 

[Boiler 45,541]

The Mothers details will be on the form, why would you want to hide it.

 

The issue is as we said earlier, domicile.

[HiFi21 5]

Yes, the child would be required to register for Selective Service. Of that we are fully aware, but it would get him out of possible obligatory military service in the country he is currently a citizen of because dual citizens cannot serve, and the former is a lesser evil than the latter even if he were drafted, I can assure you of that!. As for tax obligations, yes I am aware of those as we already have to fulfill them ourselves. We don't meet the threshold to pay income tax but we are both self-employed and pay our share of social security taxes.

 

But really, we want him to have the option to work, study or live in the US in the future. I will soon likely inherit a home in the US and eventually I want someone to inherit it and our other US assets if my husband were no longer alive it would likely be him so he would even have a home and other assets in the US. Or perhaps he would go live there while I still own it. Whatever. 

 

Just because we would not necessarily stay in the US immediately after his gaining citizenship, we are doing it with the intention of giving him the opportunity to enjoy the benefits of a citizen resident in the US in the future.

 

I don't know why anyone is questioning our intentions. Every day there are planeloads of Chinese women flying to California to give birth and then returning to their countries immediately after and that is perfectly legal. Those children will have no ties to the US whatsoever. This child is being raised by an American parent and step parent and we have spoken English to him since birth and will raise him to know the history and culture of the US even if we aren't living there. 

 

If they reject the visa application, so be it. It's not the end of the world. We aren't planning on committing any sort of fraud nor am I looking for advice on how to either. But because the circumstances are unusual, I just want to get an idea about what we need to be thinking about and how to prepare the application.

[mushroomspore 3,044]

16 minutes ago, HiFi21 said:

Would the consular officer know that he was married? Of course, we can't hide that and we have no intention of trying to do so. But these consular officers also have the ability to make a decision one way or the other based on the circumstances presented. Otherwise my friend's husband who HAD practiced bigamy and admitted it during the interview would not have been given his CR-1 visa. But he wasn't a citizen yet either so he also was not subject to any penalties of US law either if they had decided not to.

 

Yes immigrant visas are intended for people who plan to reside in the US. The catch here is thought the law says that children who meet these conditions are considered citizens from the moment of entry. So although it is an IR-2 visa and the requirements to apply for it are the same as for those who would use it for residence, in effect it is actually only used as an entry permit to the US. The child never would actually reside in the US on said visa. It would expire as soon as they entered, and they would never be even eligible for a green card.

 

 

You can split hairs all you want. The bottom line is, you need an attorney OR you can DIY this and just see what happens. Your friend's experience is also not YOUR experience. What your friend and her husband were doing does not equate AT ALL to what you want to do. It sounds like your friend and her husband did actually have intentions to reside permanently in the US and that definitely contributed to the decision. That said, had they gotten a different consular officer OR even the same consular officer on a different day, there is a good chance they would have been denied. We don't know for sure. But the point is, you are not doing the same thing as your friend. The consular officer assigned to your case is absolutely going to want to see intention to (re-)establish domicile. There is no minimum residency requirement. However, to even get the visa in the first place, the consular officer will need to be convinced of that intent and the consular officer is the gate-keeper. If he/she is not convinced you have the correct intentions and will actually FULFILL them, the visa will not be issued.

 

Once again, citizens who obtain their citizenship through the immigration process are not "safe" just because they become citizens. Their files are kept forever and are open to investigation at any point, should the agencies feel that the immigration benefits were inappropriately approved. 

[mushroomspore 3,044]

3 minutes ago, HiFi21 said:

 

I don't know why anyone is questioning our intentions. Every day there are planeloads of Chinese women flying to California to give birth and then returning to their countries immediately after and that is perfectly legal. Those children will have no ties to the US whatsoever. This child is being raised by an American parent and step parent and we have spoken English to him since birth and will raise him to know the history and culture of the US even if we aren't living there. 

 

Once again, what do "anchor babies" have to do with what you want to do?

[HiFi21 5]

5 minutes ago, Boiler said:

The Mothers details will be on the form, why would you want to hide it.

 

The issue is as we said earlier, domicile.

 

I didn't say we want to hide it. My point was simply, the law here is if the parents aren't married, the father's name CAN'T go on the birth certificate. It does not state that the parents are married, but the consular officer would know because they know the law here. Just as if the same situation took place in Australia for example, the consular officer would know the child was the product of an affair because polygamy is NOT permitted and because the father was already married, the child only could be the product of an extramarital affair. It is what it is.

 

I have yet to see anything that indicates domicile is required for the approval of the visa application except in the context of an application needing the I-864 form. I'm not saying a consular officer wouldn't make the decision to rule against issuing the visa for that reason, but no one has offered any indication that they are required to rule that way.

[HiFi21 5]

Since my other thread was locked for some unexplained reason, I wanted to continue asking some questions. On my other thread people were saying that the consular officer might refuse to issue an immigrant visa if they felt the purpose of the visa was not to immigrate. So I googled this, and I found quite the opposite. I quote directly from the law (INA 315(a)):

 

Quote

Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .

 

This means that anyone who goes to apply for a visa of any kind is presumed to have the intention of staying permanently. It is only if the person wants to visit the US temporarily, that they must prove their intent is NOT to stay permanently. Try googling "prove non-immigrant intent" and you will get over 13 million results. Google "prove immigrant intent" and you will get a total of THREE, one of which is someone making a joke about the concept in this forum. 

 

In fact, there are sometimes people who wind up applying for immigrant visas who just want to visit the US because they are refused the visitor visa because the consular officer doesn't believe their intention is just to visit. 

 

The US does not have a problem with people understaying their visas. The problem is those who overstay them.