Advise Requested

[designguy 1,179]

11 minutes ago, aaron2020 said:

The 18 years old green card holder must naturalize on her/his own by filing the N-500 after having a green card for 5 years.  

Correct me if I'm wrong. If the Uncle naturalized PRIOR to the 18 year old turning 18, then this child would also be a USC

[aaron2020 11,651]

Just now, designguy said:

Correct me if I'm wrong. If the Uncle naturalized PRIOR to the 18 year old turning 18, then this child would also be a USC

The under 18 years old green card would need to be living in the physical and legal custody of the US citizen father in order to derive US citizenship.   Being under 18 is not the only requirement to derive US citizenship from her/his father.  

 

[Lucky2Lucky 2,526]

Please have your uncle join the website; that’s the best Help you can give him.

Edited August 7, 2020 by Luckycuds

[SusieQQQ 11,586]

It’s probably worth properly copying the requirements. Note that for the first part, they all have to be met. Hence Aaron’s comment that the 15 yo must reside with him in legal custody to get citizenship, and that for the 18yo it is too late to do this and he will have naturalize by himself. (Also, this child being 18 is an adult and entitled to decide he wants to stay in the US regardless his mom wants to go back, assuming he has an unconditional green card by now.) Back to the 15yo, note that there are specific requirements to prove custody when the biological parents are not married and living together at the time. They will ask for proof of physical and legal custody so this has to be legitimately met.

 

https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-4

 

The 4 requirements:

 

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: 

• The child has at least one parent, including an adoptive parent 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); and

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

 

The physical and legal custody requirement:

 

Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios: 

• A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;

• A biological child who currently resides with a surviving biological parent, if the other parent is deceased;

• A biological child born out of wedlock who has been legitimated and currently resides with the parent;

• An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent; 

• A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.

USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.

 

 

 

Edited August 7, 2020 by SusieQQQ

[Boiler 45,488]

Maybe the OP has the visa category wrong?

[jan22 3,053]

Are you sure mom and the kids did not enter on a non-immigrant investor visa (E2)?  Likely as an employee of the E2 company and not the owner?  That makes more sense in regard to the 5 year limit (although it could be renewed if the employee and company wanted it).

[Boiler 45,488]

2 hours ago, jan22 said:

Are you sure mom and the kids did not enter on a non-immigrant investor visa (E2)?  Likely as an employee of the E2 company and not the owner?  That makes more sense in regard to the 5 year limit (although it could be renewed if the employee and company wanted it).

Great minds think alike.

[SusieQQQ 11,586]

3 hours ago, jan22 said:

Are you sure mom and the kids did not enter on a non-immigrant investor visa (E2)?  Likely as an employee of the E2 company and not the owner?  That makes more sense in regard to the 5 year limit (although it could be renewed if the employee and company wanted it).

If that’s the case then yes he needs to file i130s for both kids. Clearing it up would help. EB5 does have a conditional part, so it could be that too. Would be really useful if uncle made an account.