UPDATE: 221g from HCMC Vietnam Consulate

[3AD 0]

An update to my original post here.

Update:

My fiance sent me the 221g form. Under reasons for ineligibility, it says:

* Your child may have a claim to U.S. citizenship. Please contact the American Citizen Services Setion of the Consulate for more information. Please submit a copy of your child's passport if applicable.*

Weird. I don't have a child (yet). Reference to 221(g) of the U.S. Immigration and Nationality Act makes no mention of unborn children or their effect on issuance of a visa. So they are basing their decision on circumstances involving someone who doesn't exist yet. I'm failing to see the connection to immigration law.

Someone in a reply to my original post had mentioned needing to marry and changing to K3 status. This is not the case. There are provisions for claiming American citizenship for children born abroad out-of-wedlock. It is not the U.S. government's purview to determine whether children should be be born in or out of wedlock, therefore they have such provisions for both cases. As far as "losing face" in Vietnam ... we have already had dam hoi ceremony (pictures submitted with visa documents) which, in the eyes of Vietnamese, is sufficient. I've spent eight months total with my fiance, around their neighborhood, with family, etc., etc. Vietnamese will tell you the ceremony is worth more than a paper that shows marriage (which we never signed, of course, at risk of invalidating our K1).

So, if my fiance had gone in to the interview just a few months earlier, she'd have a visa now (??). The fact that she was visibly pregnant would be the only indicator to a CO. There are no requirements on any forms to disclose pregnancy. We did not need to mention it in our application (although I did in the cover letter, which the first clerk just threw in the trash upon getting our paperwork).

While I see the logic of making sure the fiance is carrying the petitioner's baby, paternity cannot be assessed based on the requirements for claiming U.S. citizenship for a child born abroad, which are available on the consulate's web site. Paternity can, however, be determined by way of a DNA test, which can happen before birth. I called to inquire about this and they said they wouldn't accept a DNA test (even through third party which historically supplies embassies with DNA test results). The Vietnamese woman on the phone at the embassy just kept saying come back after the baby is born. So what will she do, look at the baby and make a judgment?

Folks, here's the deal. The easiest way to get into the United States is to go to Mexico and cross the border, as did this political candidate to prove the point -- marching across on a parade of elephants with a mariachi band in tow.

As of now, I won't see my daughter's birth (which will happen mid-semester while I'm teaching at the university). I'll be out another $4000-5000 for short little trips over to see them during the next year (or however long it takes). I'm not criticizing the fact that the government needs to scrutinize to prevent freeloaders or worse from getting into the United States. But this defies logic. It certainly fails to be efficient.

At any rate, good luck to you all. I really appreciate all of your kind words, support, and consideration of my troubles. My hope is that each of you will face easier obstacles, or none at all. As for us, my lawyer will handle this from here on in.

Best,

3AD

[meauxna 15]

Wow 3AD.

At least you've got Marc on the case. Hopefully he can bring this to a swift resolution.

best wishes!

[patricks 0]

Let me see:

Yes Marriage Ceremony

No Marriage Certificate

Pregnant Visa Applicant

Applying for Fiancee Visa

It just doesn't add up correctly?

Sorry, I think this delay can't be blamed on the Consulate

[3AD 0]

Let me see:

Yes Marriage Ceremony

No Marriage Certificate

Pregnant Visa Applicant

Applying for Fiancee Visa

It just doesn't add up correctly?

Sorry, I think this delay can't be blamed on the Consulate

Patricks,

I'm not sure I follow at all. Marriage ceremonies followed by not signing the marriage registry are common in Vietnam. Even for those not going through the visa process, many Vietnamese are "married" without a paper. In our case, this is not an attempt to game the system. The ceremony is to satisfy Vietnamese customs since once my fiance arrives in US, while we will obviously get married and have a ceremony here, it would be years before we could go back and do the same in Vietnam. So having a symbolic (dam hoi) ceremony is not unusual at all. Many people on this forum have done the same. Attorneys don't have a problem with it. The consulate doesn't have a problem with it. Which is why they are not concerned with seeing pictures of people in ceremonial wedding outfits who are filing for a K1 Fiance visa. In fact, as others on the forum will tell you, not doing that can lead them to be suspicious because they know how important that ceremony is in Vietnamese culture.

As to the pregnancy, since visa applications often take a year or more, do you wait to start a family? Again, in the eyes of Vietnamese (her family, the community at large) we are for all pratical (i.e. customary) purposes, married. We would be officially married (if a paper from a government authority is what people consider marriage) before the baby is born if the consulate would adjudicate based on the law and not some arbitrary notion. Nothing in our application points to denial on grounds as dictated by the immigration act. This is even evident in their 221g explanation. It doesn't give reasons like "no ability to financially support" or "lack of relationship evidence" which are clearly spelled out in legislation. It starts talking about citizenship for a person who does not exist. The United States government operates on a rule of law as created by elected officials, not case-by-case construction of the law. If the State Department wants to include paternity checks of beneficiary's unborn children, I'm all for it. Makes logical sense. But that has to be spelled out in law first and then enforced. No other embassy operates on a such an arbitrary nature as the one in HCMC.

Provide me with a little more elaboration on why you don't think this adds up and should cause a delay. I honestly don't see the evidence or rationale for it.

3AD

[patricks 0]

Hello 3AD,

"The consulate doesn't have a problem with it"

Obviously they do have a problem with it and your case was delayed for being ineligible. Now, the question is, what can you do within your control to improve your situation? My opinion, fire the lawyer because that didn't work because you can find all the info on the internet, have your fiancee investigate how do apply for a marriage license in VN (given her pregnancy) and re-apply for a marriage visa. Just an idea......

Any other creative ideas out there?

[mybackpages 0]

I am sorry to hear your case has hot a snag. Is the consulate saying that they do not want her in the US because she will give borth and the child will have a claim to US citizenship? And since the finace visa is a "non-immigrant" visa, she might enter, not marry you and still claimcitizenship?

I am very confused especially since you point out there is nothing in the forms or other documetns that talk about this being an issue.

I hope you get this resolved quickly. Let us know.

oh and congratulations on the upcoming addition to the family

[Robert & Van 0]

Hey 3AD I thought this might be some intrest.

http://www.uscis.gov/graphics/services/natz/citizen.htm

also

http://www.uscis.gov/graphics/services/natz/CCA_Update.htm

Edited October 29, 2006 by Robert & Van

[Tony_H 0]

As I ventured a guess yesterday, there might still be something to the fact that the INS does not want to inadvertently grant a US citizenship to a child that may not be of an American citizen but by the mere right of being born in the US from an alien who is in the process of immigrating to the U.S. via a K-1.

So there seems to be 2 situations (K-1 and Foreign-born US citizenship claim) of which one process might have precedence or priority over another.

Is it possible that they want to confirm the child is of a US citizen first?

What do you all think?

Tony

I would like to venture a guess to why there seems to be a policy of making a pregnant foreigner wait till the birth of her child.

Take a situation of a K-1/K-2 for someone who has children to come, both the mother and the child(ren) will be subjected to the immigration process and rules until they become naturalized.

For a one who is pregnant, if she arrives thru a K-1 visa, the child would be born in the U.S. and would be a U.S. citizen automatically regardless of who the father might be. This would allow her to stay in the U.S. much easier and not be subjected to the immigration screening rules.

However, if the baby is of a U.S. citizen, then the citizenship would be granted after DNA verification or by the process currently in place to grant the baby the U.S. citizenship. Then after that, it would be much easier for the mother to obtain a visa to enter the U.S. and she deserves it. My uncle has done the baby citizenship process for his 14-month old girl recently. She is now a foreign-born U.S. citizen, who has her own passport and can return to the U.S. anytime.

It appears to me that this has been designed to NOT inadvertently grant a U.S. citizenship to a baby who is not from a U.S. citizen. Does this make sense?

I don't know that this line of thinking is correct or not and maybe someone can verify it. It appears to have a silver lining in this unfortunate setback for 3AD.

I would like to pray for you and your fiance through this difficult setback and that you will have the patience and strength through this process.

Tony

[STL_HCMC 0]

Hi Tony&AnhThu*,

I agree with your line of thinking.

However, what I don't understand is why they (US Consulate in HCMC) refuse to entertain (previous post about him asking the VN Consulate staff on the phone) 3AD's idea of performing a DNA paternity test now, before the baby is born?

STL_HCMC

As I ventured a guess yesterday, there might still be something to the fact that the INS does not want to inadvertently grant a US citizenship to a child that may not be of an American citizen but by the mere right of being born in the US from an alien who is in the process of immigrating to the U.S. via a K-1.

So there seems to be 2 situations (K-1 and Foreign-born US citizenship claim) of which one process might have precedence or priority over another.

Is it possible that they want to confirm the child is of a US citizen first?

What do you all think?

Tony

[Tony_H 0]

Hi STL_HCMC,

I can only guess that it might have to do with an approved procedure or guideline. Maybe, DNA testing and/or DNA testing on an unborn child has not been approved as a guideline yet and may be under consideration for a later date.

So in the meantime, they will stick to what is on the book.

Tony

Hi Tony&AnhThu*,

I agree with your line of thinking.

However, what I don't understand is why they (US Consulate in HCMC) refuse to entertain (previous post about him asking the VN Consulate staff on the phone) 3AD's idea of performing a DNA paternity test now, before the baby is born?

STL_HCMC

[wait4ever 0]

I imagine the Consular officers at HCMC (it is a Consulate, not an Embassy) have some nightmare scenario that they fear in such a situation. It might go something like this: beneficiary comes to America pregnant and has baby; baby turns out not to be 1/2 of sponsoring USC; USC kicks out beneficiary for infidelity along with the baby that is not his; beneficiary and new "anchor baby" are now public charges. The I-134 is not enforceable because courts have ruled it basically worthless. Thus, in their zeal to protect America, they use whatever means at their disposal to block pregnant women from entering the country.

It is unusual that the State Dept. does not accept DNA testing as a legitimate method for determining paternity. Apparently this proven science is good enough to send people to death row, yet not quite good enough for the State Dept., or in this case, the HCMC Consulate. The INA was enacted after the discovery of electricity but before mapping of the human genome began. Perhaps the law has yet to catch up with modern science.

I don't know all the specifics about this situation, but if there is not sufficient support in the FAM law to hold up the Consulate's wishy-washy excuse, you might try your luck in Federal District court. Ask your lawyer about this. However, your baby is due in just three months and there appears to be no other obsticles to your fiancee's visa. How long would you be tied up in court vs. waiting out HCMC on the paternity issue? Plus the expense of going to court.

You are right about some of their operational practices. They appear to operate at the fringe of the law, and I'm sure if we really knew what went on in the back rooms there would be a breech somewhere. They seem to see their practices as neccessary, but it ends up hurting a lot of good people. I feel sorry for your situation. Their treatment of your case "feels" anti-family. I hope there is a resolution for you soon.

[patricks 0]

There are 3 variables:

Pregnant beneficiary with

no marriage certificate and

applying for a Fiancee Visa

He has contol to change the second two variables to improve his situation, and then the case may be eligible in the eyes of the HCMC Consulate.

DNA tests aren't acceptable and Federal Dist Court is a timely and costly option.

He can do all this on his own with no costly legal counsel.

[3AD 0]

Obviously they do have a problem with it and your case was delayed for being ineligible.

Patricks,

You didn't read my message carefully. I was referring to the dam hoi ceremony. The consulate does not have a problem with dam hoi ceremony. Also, that's not why my case was delayed. The case was delayed to establish citizenship for an unborn person. Not the dam hoi.

3AD

[STL_HCMC 0]

This seems to be a factual point, but the real question is WHY?

STL_HCMC

...DNA tests aren't acceptable

[patricks 0]

3ad

Go ahead and call the ACS and let us know what their response is? Then ask them if you can re-apply for a marriage visa, If that would improve your eligiblity status given a newborn beneficiary? and then ask them what the requirements for a marriage visa are?

P