Confused: File for I-130 or N-600k under §322 INA?

[R&OC 371]

18 hours ago, JKLSemicolon said:

In that case what I am getting at is whether it matters that the service member is the stepfather for the purposes of meeting the requirements I quoted above (if @R&OC is not "a U.S. citizen parent who is a member of the U.S. Armed Forces").

I am the US citizen parent but a military dependent on my husband's orders and not the active duty member.

[Chancy 6,241]

14 minutes ago, R&OC said:

I am not sure I understand what you mean. The kids and I are all on my husbands orders (stepdad) but I am the one filing the N-600k as I am the biological parent. I am assuming that the days spent on his orders outside the US are counted as physical presence in the US (as it does for any other immigration purpose). I hope I am correct?

 

Our comments were actually referring to the exception to the requirement for the children's physical presence in the US to complete the N-600K process.  You may want to confirm with USCIS if your children qualify for the exception, given that you are the qualifying parent, not your husband.  If not, they'll need to be in the US (temporarily) to complete their N-600K.

 

As for your days spent on your husband's military orders, check with USCIS as well if they count towards your US physical presence for the purpose of meeting the N-600K requirements.  I recommend you use the USCIS contact channels exclusive for the military.

 

This section from the policy manual is worrying -- https://www.uscis.gov/policy-manual/volume-12-part-i-chapter-9#S-C

 

"The amendments benefit children of U.S. citizen members of the military who are accompanying their parent abroad on official orders. Specifically, INA 322(d) provides that:

• Such children are not required to have a lawful admission or be present in the United States; and
• The U.S. citizen service member who is the child’s parent may count any period of time he or she has resided abroad on official orders as physical presence in the United States.

These benefits are available only to biological, legitimated, or adopted children of U.S. citizen members of the U.S. armed forces and do not apply to step-children of the U.S. citizen parent."

 

[R&OC 371]

36 minutes ago, Chancy said:

 

Our comments were actually referring to the exception to the requirement for the children's physical presence in the US to complete the N-600K process.  You may want to confirm with USCIS if your children qualify for the exception, given that you are the qualifying parent, not your husband.  If not, they'll need to be in the US (temporarily) to complete their N-600K.

 

As for your days spent on your husband's military orders, check with USCIS as well if they count towards your US physical presence for the purpose of meeting the N-600K requirements.  I recommend you use the USCIS contact channels exclusive for the military.

 

This section from the policy manual is worrying -- https://www.uscis.gov/policy-manual/volume-12-part-i-chapter-9#S-C

 

"The amendments benefit children of U.S. citizen members of the military who are accompanying their parent abroad on official orders. Specifically, INA 322(d) provides that:

• Such children are not required to have a lawful admission or be present in the United States; and
• The U.S. citizen service member who is the child’s parent may count any period of time he or she has resided abroad on official orders as physical presence in the United States.

These benefits are available only to biological, legitimated, or adopted children of U.S. citizen members of the U.S. armed forces and do not apply to step-children of the U.S. citizen parent."

 

I just emailed them. I was assuming the days spent abroad on his orders would count as physical presence but it is better to make sure. It surely is worrying. I'll keep you updated as soon as I have an answer.

[R&OC 371]

19 minutes ago, R&OC said:

I just emailed them. I was assuming the days spent abroad on his orders would count as physical presence but it is better to make sure. It surely is worrying. I'll keep you updated as soon as I have an answer.

 

I checked the regulations and under §319 (e) the time spend abroad in marital union and in accordance with members official orders will count towards continuous and physical presence. But it doesn't restate that information under §322 (INA). The helpline transferred me to a specialist line but the call didn't go through. Waiting for my email response.

[R&OC 371]

My husband just called the military hotline and they confirmed that it is their understanding BUT suggested to ask an immigration lawyer for clarification as this case is rather special. But the specialist mentioned that it is his understanding that US military bases worldwide count as being in the US.

[Chancy 6,241]

2 hours ago, R&OC said:

My husband just called the military hotline and they confirmed that it is their understanding BUT suggested to ask an immigration lawyer for clarification as this case is rather special. But the specialist mentioned that it is his understanding that US military bases worldwide count as being in the US.

 

Thanks for the update.  I suggest consulting with a lawyer who has lots of experience with citizenship applications for military family members.

 

In case you're not able to meet the US presence requirement without your days under military orders, the I-130 route is still a viable path for your children's citizenship under INA 320.  Your children will need to undergo medical and interview, then fly to the US with their IR2 visas to gain LPR status.  They can fly back to Germany immediately after (like next day if you want), since being under military orders abroad counts as residing in the US.  It's just the part about gaining LPR status that can't be done outside the US.

 

By the way, you can file I-130 online.  But DCF through Frankfurt might be better for you.

 

[HRQX 4,145]

56 minutes ago, Chancy said:

In case you're not able to meet the US presence requirement without your days under military orders, the I-130 route is still a viable path for your children's citizenship under INA 320.  Your children will need to undergo medical and interview, then fly to the US with their IR2 visas to gain LPR status.  They can fly back to Germany immediately after (like next day if you want), since being under military orders abroad counts as residing in the US.  It's just the part about gaining LPR status that can't be done outside the US.

 

By the way, you can file I-130 online.  But DCF through Frankfurt might be better for you.

Yup, I agree that INA 320 is a viable path (per the above process). A new law from last year (Citizenship for Children of Military Members and Civil Servants Act) works in OP's favor for that path. The aforementioned new law was codified as INA 320(c).

[HRQX 4,145]

7 hours ago, R&OC said:

I checked the regulations and under §319 (e) the time spend abroad in marital union and in accordance with members official orders will count towards continuous and physical presence. But it doesn't restate that information under §322 (INA). The helpline transferred me to a specialist line but the call didn't go through.

The INA 319(e) does NOT apply to INA 322. It only applies to INA 319(a) and INA 316(a): "shall be treated, for purposes of subsection (a) and section 1427(a) of this title, as residence and physical presence..."

 

The path that @Chancy described above is the most viable.

[Ryan H 3,812]

Moved from Progress Reports to Process & Procedures.

[R&OC 371]

On 5/6/2021 at 1:33 AM, HRQX said:

The INA 319(e) does NOT apply to INA 322. It only applies to INA 319(a) and INA 316(a): "shall be treated, for purposes of subsection (a) and section 1427(a) of this title, as residence and physical presence..."

 

The path that @Chancy described above is the most viable.

I would like to give you all an update: I had hired an immigration lawyer to (basically verify) HRQX's comment here. Not that I had any doubt but as I am going into a family court in Germany, I needed a legal opinion anyway. The lawyer confirmed HRQX's statement in a more lengthy statement.  USCIS had told to me that time on orders would apply as physical presence but this is not correct. I am aware that my case may be a little uncommon but I received an enormous amount of help through VJ and I am very grateful as it points me into the right direction.

 

The journey isn't over and done with as we filed the I-130 for the children but at least, we didn't waste energy and time with a n-600k filing that would have likely been denied.

 

Thank you all and I am very grateful.