Alien Child to US Mother traveling to the US on foreign passport

[R&OC 371]

I do apologize if I provide incomplete information: My intent has never been to adjust status from within but I do need the parental consent of their biological father for the I-130 interview. It’s not a USCIS guideline but a foreign policy agreement or bilateral agreement between the US and German government

And I did file the I-130 already given the advice in this forum. What I am doing (but I am not hitting the right sources) is researching on „why the kids may need to have an immigrant status /US citizenship from a family law perspective. And that’s a tough one to establish in court. I just feel so deflated. Their Dad has clearly stated that he doesn’t want to permit the kids to enjoy anything that I also enjoy if possible. So whatever I suggest is met with a „no“.

 

I thought if anyone knows of any restrictions, no one better than members of this forum may know.

[R&OC 371]

1 hour ago, Mike E said:

There is always this risk.  Especially if CBP goes through your phone or computer and finds all your posts on VJ on this topic. If so, I consider it probable.   

at this point it would actually help my case in a family court here. Also, I am wondering - with a pending I-130 - if the kids would still be eligible for ESTA? But that’s a different story. The I-130 has been filed right after my last thread! I also hired an immigration lawyer but I am awaiting his results. 

[R&OC 371]

54 minutes ago, SusieQQQ said:

OP is a US citizen. It is very rare for CBP to do this for a USC especially with no indication of criminal activity. There are things to worry about in this case but I don’t think this is one of them.

I am very curious what the other things are to worry about? I am concerned about the custody part that is no where asked for by USCIS but seems to be the norm here. I just hope the Dad changes his mind one more time as he has done before.

[SusieQQQ 11,586]

25 minutes ago, R&OC said:

I am very curious what the other things are to worry about? I am concerned about the custody part that is no where asked for by USCIS but seems to be the norm here. I just hope the Dad changes his mind one more time as he has done before.

The uncooperative dad part is what I meant ...sorry if I added to any stress. 
 

Custody ..for visa issuance is not always necessary, just the permission of the other parent is usually fine. The exact form that permission takes depends on your country.
 

Custody will be an issue if you want the children to automatically gain citizenship. Under INA320, a child under 18, with LPR status, living in the physical and legal custody of a US citizen parent in the US will automatically become a citizen (joint custody is acceptable for this). But you first need to sort out getting them LPR status.

[Lucky2Lucky 2,526]

22 hours ago, R&OC said:

Dear community,

 

I am currently preparing to go into court with the biological father of my two children over the I-130/N-600 process for my children. My lawyer has asked for information which I find almost impossible to research - and I hope one of you may be able to point me into the right direction.

 

I am a US citizen who naturalised in 2020 but lives abroad with my two children under my (second) husbands US military orders. My children do not have a US LPR status.

 

Are my children at a disadvantage without a legal immigrant /US citizenship status when we travel to the US? Can they be returned back "home" because CBP suspects an immigration intent because their mom and stepdad are US citizens?

 

My lawyer would like to argue that the kids are at a disadvantage and could potentially be turned away at the border given the surge of unaccompanied children. But my lawyer is by no means a US immigration lawyer but instead a family law based lawyer in Europe.

 

Is there anyone who could help out with arguments?

Anyone other than US citizens have the potential to be turned away at the border. Yes, the children can be returned "home" but home is Germany... they would only be visiting the US. Unaccompanied children arriving at the southern border would be a poor argument IMO. Are you trying to get your children permanent resident status/US citizenship and the father doesn't want it? 

[Boiler 45,466]

From a practical point of view I believe US law requires both parents agreement to obtain a US Passport and a USC has to enter with a US Passport so could the situation be potentially more complicated?

 

I have no knowledge of German law, US and UK systems tend to require the children to stay within their jurisdiction unless both parties agree. 

[Demise 1,281]

3 hours ago, R&OC said:

1. The kids were born in Germany

2. 2006 and 2010

3. Yes and no, he is not.

4. I have - but it may not be certain that living under military orders on my husbands orders count towards physical presence. If they do, then I have 5 years physical presence

5. yes 

Okay so neither of them were born while you were a US Citizen and their father is not a US Citizen either, so there's no claim to citizenship at birth here. File I-130s for both to get the ball rolling for them for IR-2 visas, as long as they get the visa and enter US while under 18 they'll become citizens under the Child Citizenship Act of 2000, then you just file N-600 for a certificate of citizenship or get them US Passports.

 

Affidavit of support and income requirements won't be a factor because the statute specifically exempts children like this (who'll become USCs on entry) from needing it.

[Boiler 45,466]

Just now, Demise said:

Okay so neither of them were born while you were a US Citizen and their father is not a US Citizen either, so there's no claim to citizenship at birth here. File I-130s for both to get the ball rolling for them for IR-2 visas, as long as they get the visa and enter US while under 18 they'll become citizens under the Child Citizenship Act of 2000, then you just file N-600 for a certificate of citizenship or get them US Passports.

 

Affidavit of support and income requirements won't be a factor because the statute specifically exempts children like this (who'll become USCs on entry) from needing it.

The issue seems to be the Father approving.

[Timona 4,207]

1 hour ago, Boiler said:

The issue seems to be the Father approving.

 

And this is also why I had suggested to her earlier to file I-130, keep it to herself and not even mention it to the kids, lest they tell the ex-husband by accident.

 

From my wicked mind, the dad will not know about the I-130. So she can get it for the kids, fly to US with the kids even for 5 days to trigger the GC (the kids can then go back and the husband won't suspect anything - I do not know why he is controlling to the point where he is acting like this will make him lose custody, but hey, that is beyond my free VJ pay grade), file naturalization for them as mentioned by @Demise and voila, it is done.

 

The good thing is that they both have custody, so she has a say.

 

@R&OC, there are multiple ways to kill a rat. Just fly to the US for a weekend with the kids without him knowing. Come Monday, you guys are back in Germany and back to normal life. In the hindsight, GC has been triggered and you can go ahead and file for the kids' naturalizations as mentioned earlier. You would have done right for your kids. Come 18 years, they can choose for themselves where they'd like to live.

Edited May 27, 2021 by Timona

[Timona 4,207]

2 hours ago, R&OC said:

at this point it would actually help my case in a family court here. Also, I am wondering - with a pending I-130 - if the kids would still be eligible for ESTA? But that’s a different story. The I-130 has been filed right after my last thread! I also hired an immigration lawyer but I am awaiting his results. 

 

Forget about all this. Why worry yourself? These are just gonna add you stress, may end up affecting your current relationship as well as putting you in financial limbo.

You have joint custody. It is not as if one parent becomes defacto guardian for the kids.

I hope you filed I-130 for EACH child.

Just do not tell the kids (it may slip and he starts a show) nor him anything. Read my post, the one what I tagged you on.

[Boiler 45,466]

1 minute ago, Timona said:

 

And this is also why I had suggested to her earlier to file I-130, keep it to herself and not even mention it to the kids, lest they tell the ex-husband by accident.

 

From my wicked mind, the dad will not know about the I-130. So she can get it for the kids, fly to US with the kids even for 5 days to trigger the GC (the kids can then go back and the husband won't suspect anything - I do not know why he is controlling to the point where he is acting like this will make him lose custody, but hey, that is beyond my free VJ pay grade), file naturalization for them as mentioned by @Demise and voila, it is done.

 

The good thing is that they both have custody, so she has a say.

 

@R&OC, there are multiple ways to kill a rat. Just fly to the US for a weekend with the kids without him knowing. Come Monday, you guys are back in Germany and back to normal life. In the hindsight, GC has been triggered and you can go ahead and file for the kids' naturalizations as mentioned earlier. 

All this depends on the Fathers agreement.

[R&OC 371]

3 hours ago, Luckycuds said:

Anyone other than US citizens have the potential to be turned away at the border. Yes, the children can be returned "home" but home is Germany... they would only be visiting the US. Unaccompanied children arriving at the southern border would be a poor argument IMO. Are you trying to get your children permanent resident status/US citizenship and the father doesn't want it? 

Yes that is it. The father of my children has clearly stated that he doesn't want the kids to have any ties to the US. We have moved to Germany, stayed were the father lives and the kids speak English at home, love US sports and the US culture they know from being part of the military community. We just have to navigate this situation.

[R&OC 371]

45 minutes ago, Boiler said:

1 hour ago, Timona said:

 

And this is also why I had suggested to her earlier to file I-130, keep it to herself and not even mention it to the kids, lest they tell the ex-husband by accident.

 

From my wicked mind, the dad will not know about the I-130. So she can get it for the kids, fly to US with the kids even for 5 days to trigger the GC (the kids can then go back and the husband won't suspect anything - I do not know why he is controlling to the point where he is acting like this will make him lose custody, but hey, that is beyond my free VJ pay grade), file naturalization for them as mentioned by @Demise and voila, it is done.

 

The good thing is that they both have custody, so she has a say.

 

@R&OC, there are multiple ways to kill a rat. Just fly to the US for a weekend with the kids without him knowing. Come Monday, you guys are back in Germany and back to normal life. In the hindsight, GC has been triggered and you can go ahead and file for the kids' naturalizations as mentioned earlier. You would have done right for your kids. Come 18 years, they can choose for themselves where they'd like to live.

All this depends on the Fathers agreement.

Timona, I appreciate your thought but the US Consulate does not adjucate the I-130 without the fathers consent or alternatively having sole custody.

This is based on 7 FAM 1720 Appendix B&D of the Hague Abduction Convention (also Abbott vs Abbott) and multiple other rulings. While USCIS does not require the fathers consent in their policy manual, the consulate does. This is a foreign policy agreement.

[Timona 4,207]

21 minutes ago, R&OC said:

Timona, I appreciate your thought but the US Consulate does not adjucate the I-130 without the fathers consent or alternatively having sole custody.

This is based on 7 FAM 1720 Appendix B&D of the Hague Abduction Convention (also Abbott vs Abbott) and multiple other rulings. While USCIS does not require the fathers consent in their policy manual, the consulate does. This is a foreign policy agreement.

 

Try. Never lose hope

[SusieQQQ 11,586]

17 minutes ago, Timona said:

 

Try. Never lose hope

You realize you are encouraging her to do something that could get her arrested for international child abduction? If the father is really that obstructive he could very well lay a charge. You need to be really careful about what you advise people here to do. Looks like OP has solid advice about what she is legally allowed to do. 

 

 

Edited May 27, 2021 by SusieQQQ