Best Approach for IR2 application (involves stepchild/polygamy)

[Ryan H 3,812]

**Post merged with existing thread.**

 

14 minutes ago, HiFi21 said:

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)):

 

 

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.

 

[Lemonslice 4,858]

20 minutes ago, HiFi21 said:

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)):

 

 

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.

Do you want to discuss and debate about hypothetical situations, or advice on your situation? Just not clear about what you're looking for from this forum - you seem to know the answer, so why are you asking the question?

[mushroomspore 3,044]

1 hour ago, HiFi21 said:

 

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.

 

 

Yet you were wondering why we were questioning your intentions?? USCIS' instructions are to be taken pretty literally: the child needs to be residing in the US with the US parent. You're saying, "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." No, it is not. It is for those who WANT to reside in the US and are used as such. You asked earlier why they even ask for domicile evidence. That's why: because this is an IMMIGRANT VISA. Do you think the government doesn't pay attention to these kinds of things?? Don't apply for an immigrant visa if you don't plan on immigrating. I don't know how much plainer it can be said.

Edited September 28, 2018 by mushroomspore

[JFH 12,190]

2 hours ago, HiFi21 said:

 

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. 

 

 

 

 

 

 

Of course you had other options. You are both USCs and you could have come here for 9 months to complete a surrogacy or for the duration of an adoption. Or even - heaven forbid - you could have sent wife number 2 here to have the baby like the “planeloads of Chinese women” who apparently come here “every day” to do exactly that. I don’t know what you have against that - what you are doing is no different. You are using a legal provision to your own personal advantage.  Just as the law says “anyone born on US soil is a USC” regardless of parentage and their domicile or status here and people take advantage of this by booking plane tickets here in the late stages of pregnancy purely to give birth here to gain that much-desired citizenship for their children, the law also says “children of USCs who enter on an IR-2 are immediately USCs” and you are planning to get an IR-2 just to get the child through the POE so that you can get that much-desired certificate of citizenship and then leave the country with no intention of returning. 

 

 

2 hours ago, HiFi21 said:

 

But really, we want him to have the option to work, study or live in the US in the future. 

 

He doesn’t need to be a citizen for either of those to happen. 

Edited September 28, 2018 by JFH

[Orangesapples 1,954]

2 hours ago, HiFi21 said:

 

 

 

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.

 

 

But you're both US citizens and these things are legal in the US...

[HiFi21 5]

1 hour ago, mushroomspore said:

Yet you were wondering why we were questioning your intentions?? USCIS' instructions are to be taken pretty literally: the child needs to be residing in the US with the US parent. You're saying, "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." No, it is not. It is for those who WANT to reside in the US and are used as such. 

First off, how can the child be residing in the US before applying for the visa since they apply for the visa from abroad? And second of all, if the they automatically become citizens upon their passport being stamped at the airport, how can they also reside in the US on the visa? I'm not questioning the purpose of the visa, but in this case they don't actually have the opportunity to live in the US on that visa due to the law itself! Basically the government is giving the child a visa whose main purpose is one that the child is not even able to use it for.

[mushroomspore 3,044]

7 minutes ago, HiFi21 said:

First off, how can the child be residing in the US before applying for the visa since they apply for the visa from abroad? And second of all, if the they automatically become citizens upon their passport being stamped at the airport, how can they also reside in the US on the visa? I'm not questioning the purpose of the visa, but in this case they don't actually have the opportunity to live in the US on that visa due to the law itself! Basically the government is giving the child a visa whose main purpose is one that the child is not even able to use it for.

That's why the visa application asks for establishment of US domicile or intent to establish US domicile. 

[HiFi21 5]

20 minutes ago, JFH said:

Of course you had other options. You are both USCs and you could have come here for 9 months to complete a surrogacy or for the duration of an adoption. Or even - heaven forbid - you could have sent wife number 2 here to have the baby like the “planeloads of Chinese women” who apparently come here “every day” to do exactly that. 

 

We are both dual citizens, so we are also subject to the laws of the country we currently live in and either adoption or surrogacy (which would involve passing off a child who cannot by the law here ever be recognized legally as ours) could land us in prison. It would be like kidnapping or buying a baby, not to mention a moral crime. And if we were ever found out, the child would no longer have been recognized as my husband's child, basically it would have been turned into an orphan.

 

As for sending the other wife to give birth here, there would have been a risk that either she or my husband could be seen as coming to the US to practice polygamy or stay permanently, in which case, she would be denied any visa at all. Also, he could be considered as practicing bigamy if she was present on US soil under state laws. As it is now, state laws do not apply to him as he is not residing in any state so he is not breaking any laws. 

 

I understand some of you may have moral objections, but I would hope you would try to have some sympathy for someone who is stuck between the sometimes contradictory laws of two countries that both have jurisdiction over them and is trying to live their life and follow both laws.

Edited September 28, 2018 by HiFi21

[HiFi21 5]

2 minutes ago, mushroomspore said:

That's why the visa application asks for establishment of US domicile or intent to establish US domicile. 

Where on the VISA application do it ask for that? It does on the I-864 form, but where does it on the visa application itself?

[Boiler 45,541]

VISA is a credit card.

 

You had choices, you chose the one you chose.

[HiFi21 5]

No, VISA is something you use to enter and stay in another country. I used all caps and bold for emphasis, which should be obvious. For example, on the I-130 or DS-260. Does it ask one their place of domicile specifically?

 

Yes, we made our choices, and if he can't get citizenship, so be it. 

 

But if he can and the government determines him to be entitled to it, why not apply? The fact is if he wanted to go to college in the US and applied for a student visa, the burden would be on him to prove he was not going to stay in the US after he finished. With an American father and stepmother with a home, etc etc in the US,  they would likely deny him the visa on the grounds that they did not believe he was going just to study and tell him to apply for an immigrant one instead. I see you all come from countries with low visa fraud rates but we are living in a country where a male in his late teens would be scrutinized very heavily and there is no way he would be able to meet the burden of proof for a student visa as he could for an immigrant one.

Edited September 28, 2018 by HiFi21

[HiFi21 5]

I appreciate everyone's input but I am now reminded of when we applied for my husband's immigrant visa. Asking for advice online, or friends, even asking the embassy, all led to answers that were totally off the mark. In the end, the immigration law codes themselves were actually clearer and more informative than any other source.

[Boiler 45,541]

Well you joined 23 hours ago so you did not ask here.

[geowrian 22,337]

Either you accept that domicile is necessary or you reject it. It sounds like you have your mind made up on the issue.

[mushroomspore 3,044]

18 minutes ago, HiFi21 said:

Where on the VISA application do it ask for that? It does on the I-864 form, but where does it on the visa application itself?

I misspoke about it being on the actual application but domicile is presumed on the simple fundamental basis that you are applying for an immigrant visa. What are you going to do if you end up with a tough consular officer who combs your entire application and nitpicks everything and asks, "So how do you plan on supporting this child in the US?"? And what do you think will happen WHEN you answer, "Oh we don't want to actually stay in the US...we just want him to get his citizenship"?