Bring niece to US? I'm listed as her dad on the birth certificate (local Ecuador law). Possible I130?

[EDreNYC 3]

Just now, ra0010 said:

You said your wife became a USC in 2020. So did she apply in 2019 and then had the interview in 2020? Did the “adoption” happen before or after the interview? Because to my knowledge during the N400 they go through the questions again… if she did not disclose the child, it might be a problem. However, I am not sure it would be considered misrepresentation because it wouldn’t have changed the outcome of the decision. I am just thinking of possible ramifications.

We submitted n400 late 2019, she got her interview and ceremony on same day in 2020. "Adoption" happened after this, they never asked my wife about any children during the day of the interview and ceremony. 

[SalishSea 17,928]

7 hours ago, EDreNYC said:

Meaning in my niece's birth certificate I appear as the father.

Very sketchy.

[SalishSea 17,928]

7 hours ago, EDreNYC said:

Whoa time out, how is this fraud? Local Ecuador law allows for any male to recognize a child as their own regardless of a biological relationship. 

Because in the US it is not a recognized legal relationship, and therefore would be fraudulent.

[SalishSea 17,928]

6 hours ago, canadian_wife said:

If you want to truly care for this child like a true daughter have you considered moving to Ecuador?  
 

THIS.

[SalishSea 17,928]

3 hours ago, EDreNYC said:

Bingo!!!!!!

 

The child would've had the same 2 last names as the mother. Therefore in front of society it would appear as the child was her sister rather then her daughter. Having my last name and the mother's is a whole lot better than having the same 2 last names as the mom. Unless the mother or someone close announces it no one knows I am not the father. I believe this is the same reasoning why Ecuadorian law allows any male to go to the registry and voluntarily acknowledges the child as their own. Biological relationship doesn't matter.

So having the same last names as the mother is worse than it looking like the maternal aunt's husband potentially fathered the child?  Interesting...

[SalishSea 17,928]

4 hours ago, EDreNYC said:

The primary goal was not to immigrate to the US as the child still lives with her mother in Ecuador. Since we spend 6 months out of the year down there, me and my wife wanted to explore the option of having the child come over for visits.

And yet the title of this thread and the content of your original post is about filing an I-130 petition for an immigrant visa.   *Confused*

[Kai G. Llewellyn 838]

8 hours ago, EDreNYC said:

I have a niece who resides in Ecuador with my sister in law. The child was born out of wedlock, the biological father has been non-existent. Me and wife reside in the states, we have come to care for the child. For social reasons in Ecuador it is frown upon a child to have only the mother's last name, me and my wife agreed that I would do a "voluntary recognition". Meaning in my niece's birth certificate I appear as the father. My wife and I would like for our niece to be able to migrate to the states to spend time with us. I have contacted many lawyers in the US but no one wants to take on the case or even knows what to do. Some recommended we go through the adoption path, however in speaking to an Ecuadorian attorney, they mentioned this is non-sense. Since under Ecuadorian law, I am the father to my niece, therefore I can't adopt a child which under local law is already mines. Is there any path which can be taken to obtain a citizenship or green card for my niece? So far we have looked into the below options but seem very lost.

 

CRBA - Nope, since there is no biological relationship and would possibly ask for a DNA test.

I130- Seems like a possibility but some lawyers advised against it since it also requires a biological relationship?

N600 & N600k Completely clueless to these paths. 

 

Thanks in advance!

 

I'm not too familiar with it but it sounds like what you should've done is go through the intercountry adoption process. You might be able to do so, despite you being added to the birth certificate it may well be possible for you to bring the child to the US via this process - https://travel.state.gov/content/travel/en/Intercountry-Adoption.html

 

The only snag I can see is that there will still be a relationship with the child's mother who will remain in Ecuador, and there won't be any process for the child to bring their mother to the US until they are 21. I could see adoption authorities having an issue with this.

 

The process is quite involved as it's subject to your state's laws on adoption, US federal law as well Ecuador's adoption laws. The child will have to obtain an immigrant visa and be admissible to the US. Ecuador is a party to the Hague Convention on Intercountry adoption, so you should follow the convention process:

 

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/immigrant-visa-process/us-hague-convention-adoption-and-visa-process.html

 

If you live in Ecuador with the child for two years whereby the child is legally adopted by you, you would be able to petition them in the IR-2 category with form I-130...however given most can't do that, they will use the Convention/Non-Convention (depending if the sending country is party to the Hague Convention) process. Children coming to the US via the convention process will receive an immigrant visa in the IH-3 or IH-4 category. IH-3 grants US Citizenship immediately on entry, IH-4 is for children who have not yet been fully adopted and will be admitted as LPRs until the adoption is full and final afterwhich they become US Citizens. https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/immigrant-visa-process/us-hague-convention-adoption-and-visa-process.html

 

Like I said, I'm not 100% familiar with the intercountry adoption rules, so this might not be possible but hopefully these resources can point you in the right direction.

Edited December 1, 2021 by Kai G. Llewellyn

[aaron2020 11,651]

1 minute ago, Kai G. Llewellyn said:

I'm not too familiar with it but it sounds like what you should've done is go through the intercountry adoption process. You might be able to do so, despite you being added to the birth certificate it may well be possible for you to bring the child to the US via this process - https://travel.state.gov/content/travel/en/Intercountry-Adoption.html

 

The only snag I can see is that there will still be a relationship with the child's mother who will remain in Ecuador, and there won't be any process for the child to bring their mother to the US until they are 21. I could see adoption authorities having an issue with this.

 

The process is quite involved as it's subject to your state's laws on adoption, US federal law as well Ecuador's adoption laws. The child will have to obtain an immigrant visa and be admissible to the US. Ecuador is a party to the Hague Convention on Intercountry adoption, so you should follow the convention process:

 

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/immigrant-visa-process/us-hague-convention-adoption-and-visa-process.html

 

If you live in Ecuador with the child for two years whereby the child is legally adopted by you, you would be able to petition them in the IR-2 category with form I-130...however given most can't do that, they will use the Convention/Non-Convention process.

 

Like I said, I'm not 100% familiar with the intercountry adoption rules, so this might not be possible but hopefully these resources can point you in the right direction.

Not gonna work.

 

A.  He is the legal father already under Ecuadorian law.  He has consulted an Ecuadorian attorney on adoption and it was a no go since she is already recognized as his child.

 

B.  The child is his niece.  If it was only so easy to adopt a niece and bring her to the US.  US law is especially skeptical in these cases.  They would need to go to court and have the child's mother as incapable of caring for the child. 

C.  Adoption potentially cuts off the ties to the mother.

 

There is only one fix for this problem.  Correct the child's birth certificate.  

P.S.  OP didn't ask about a visitor visa.  He asked about CRBA, I-130, N-600, and N-600k.  The CRBA, N-600, and N-600k would constitute a false claim of US citizenship because the child was not born a US citizen.  An I-130 would constitute a false claim of parentage by submitting the birth certificate with a known falsehood.  

[Kai G. Llewellyn 838]

6 minutes ago, aaron2020 said:

Not gonna work.

 

A.  He is the legal father already under Ecuadorian law.  He has consulted an Ecuadorian attorney on adoption and it was a no go since she is already recognized as his child.

 

B.  The child is his niece.  If it was only so easy to adopt a niece and bring her to the US.  US law is especially skeptical in these cases.  They would need to go to court and have the child's mother as incapable of caring for the child. 

C.  Adoption potentially cuts off the ties to the mother.

 

There is only one fix for this problem.  Correct the child's birth certificate.  

P.S.  OP didn't ask about a visitor visa.  He asked about CRBA, I-130, N-600, and N-600k.  The CRBA, N-600, and N-600k would constitute a false claim of US citizenship because the child was not born a US citizen.  An I-130 would constitute a false claim of parentage by submitting the birth certificate with a known falsehood.  

Yeah, like I said...wasn't 100% sure if this was a possibility, just suggesting what options there could be. Agreed that they'd need to correct the birth certificate first off.

 

Would a child be subject to inadmissibility due to claims made on their behalf by a US Citizen? Sounds like the USC would be on the hook for civil/criminal penalties at most...but I could be wrong.

 

Sounds like the way forward would be the 2 years living in Ecuador, fixing the birth cert, somehow getting Ecuador to agree to the adoption then doing the I-130 to get back to the US.

 

Also I wasn't talking about a visitor visa. The child's going to need an immigrant visa if they are going to move to the US, period.

Edited December 1, 2021 by Kai G. Llewellyn

[aaron2020 11,651]

Just now, Kai G. Llewellyn said:

Yeah, like I said...wasn't 100% sure if this was a possibility, just suggesting what options there could be. Agreed that they'd need to correct the birth certificate first off.

 

Would a child be subject to inadmissibility due to claims made on their behalf by a US Citizen? Sounds like the USC would be on the hook for civil/criminal penalties at most...but I could be wrong.

The child would not be penalized.

 

The OP would be in big trouble.  

There is a good reason why no lawyer will touch this.  

[Redro 4,611]

14 hours ago, EDreNYC said:

haha, no the intent was not to bring my sis in law. We simply thought there would be a way to petition for the child to enter the US for a few months of the year. My wife is an USC, so there is the possibility of my wife petitioning her mother, then she petitions my sis in law, etc.

You were planning on taking a 5/ 6 year old to the States while the mother/ primary caregiver stayed in Ecuador? The mom wasn't planning on applying for a tourist visa. 

 

10 hours ago, EDreNYC said:

We submitted n400 late 2019, she got her interview and ceremony on same day in 2020. "Adoption" happened after this, they never asked my wife about any children during the day of the interview and ceremony. 

But, you didn't "adopt" right. You're claiming to be the birth father... so when was the birth certificate issued? Did they issue an amended birth certificate or was it a late registration?

Seems so messy as the child was born before 2019...Your wife could have technically known the child "was yours" (she has a stepchild in 2019) even if the birth certificate hadn't been printed yet. 

 

What was the timing and order of filing the N400, N400 interview, claiming paternity, amending/registering the birth and new birth certificate in hand? 

 

 

 

 

[Rocio0010 5,579]

2 minutes ago, Kor2USA said:

Seems so messy as the child was born before 2019...Your wife could have technically known the child "was yours" (she has a stepchild in 2019) even if the birth certificate hadn't been printed yet. 

 

What was the timing and order of filing the N400, N400 interview, claiming paternity, amending/registering the birth and new birth certificate in hand? 

This was exactly my point. Thank you for picking it up. I doubt they will catch it, but USCIS can fight it and say she misrepresented herself by not counting said child in the N400. 

[EDreNYC 3]

7 hours ago, aaron2020 said:

The child would not be penalized.

 

The OP would be in big trouble.  

There is a good reason why no lawyer will touch this.  

You are right, my poor choice of words didn't come off right in my original post. As for lawyers, yesterday a few agreed to take on the case. All shot down the idea of a visitor visa, most said I130 is the way to go, one even suggested my wife petition as a step child. After all the suggestions here, we will back off the idea of getting any sort of visa for the child. We will let sleeping dogs lie, although given some of these posts I wonder after the child is 18 years old would she be able to petition for a visa based on her own. Would me being listed as the father on the birth certificate come into play even well after the child is of age? 

 

PS Unfortunately, "fixing" the birth certificate is not an option. Under Ecuadorian laws a child can't be in limbo even if I'm not the biological father. The biological father abandoned the child, according to several Ecuadorian attorneys the courts most likely deem fixing the birth certificate as "not in the best interest of the child".

 

No good deed goes unpunished for sure...

[Rocio0010 5,579]

5 minutes ago, EDreNYC said:

my wife petition as a step child

But yet she didn’t list any step child on form n400…. See where I’m going?

6 minutes ago, EDreNYC said:

Would me being listed as the father on the birth certificate come into play even well after the child is of age? 

I’m not sure I understand the question. If she applies for a visa on her own, the bc is irrelevant imho. And no, you can’t “sponsor” her tourist visa (many people have this wrong idea)

[Redro 4,611]

6 minutes ago, EDreNYC said:

You are right, my poor choice of words didn't come off right in my original post. As for lawyers, yesterday a few agreed to take on the case. All shot down the idea of a visitor visa, most said I130 is the way to go, one even suggested my wife petition as a step child. After all the suggestions here, we will back off the idea of getting any sort of visa for the child. We will let sleeping dogs lie, although given some of these posts I wonder after the child is 18 years old would she be able to petition for a visa based on her own. Would me being listed as the father on the birth certificate come into play even well after the child is of age? 

 

PS Unfortunately, "fixing" the birth certificate is not an option. Under Ecuadorian laws a child can't be in limbo even if I'm not the biological father. The biological father abandoned the child, according to several Ecuadorian attorneys the courts most likely deem fixing the birth certificate as "not in the best interest of the child".

 

No good deed goes unpunished for sure...

What type of visa would she be looking at? 

A non-immigrant visa where she lists she has a USC father might get denied because they assume she has immigrant intent. 

You might encounter issues with the immigrant visa as she is required to produce a birth certificate. And I'm not sure how they would view a BC that was printed 4-5 years after the birth of the child naming a USC father.