Reporting a foreign birth abroad to a US consulate

Immigration Attorney – Boston, MA

I recently spoke on immigration issues Islamic Society of New England in Quincy, Massachusetts. It was a great night and I certainly appreciated the warm reception and generous hospitality of Imam Khalid.

In my presentation, I stressed the importance of legal representation. It always sounds so self-serving when I tell people that they should hire a immigration lawyer. I’m an immigration lawyer and so, of course, I would recommend hiring a lawyer. But I say this because I see people again and again making the same simple immigration mistakes that could have been easily avoided if only they had consulted with a decent immigration attorney beforehand.

At the mosque in Quincy, MA, I fielded many good questions on a variety of immigration topics. Several people wanted to know how to report a foreign birth abroad. Here’s the lead-up to the question and a common situation: a guy files an N-400 to become a naturalized U.S. citizen. After gaining U.S. citizenship, he returns to his home country, gets married and has a child. So question is how do you get the wife and child green cards so they can immigrate to the United States?

First, the U.S. citizen husband needs to file a petition for immigrant visa for his wife. You can do this by filing Form I-130 with the U.S. Citizenship and Immigration Services (USCIS). But don’t make the mistake of thinking that the child will automatically gain immigration benefits simply because by being listed on the wife’s immigration form. A separate visa petition (I-130) must be filed for the child.

But another way around this problem exists. Under certain circumstances, the child could derive U.S. citizenship from the father even if born outside the U.S and even if the mother is not a U.S. citizen. Under the Immigration and Nationality Act, a father will transmit U.S. citizenship to his child if the following conditions are met:

1. The father must be physically present in the U.S. for a period of five years, two of which after age 14; and

2. A biological relationship must be established between the father and the child;

3. The father must agree in writing to support the child until 18 years; and

4. while the child is under the age of 18, the father either (a) legitimates
the child, (b) acknowledges paternity, or (c) establishes paternity in court.

If you can meet all of these requirements, your child already has US citizenship and, therefore, doesn’t need a visa to enter the US.  Instead, to enter the US, you will need to get a American passport for your child by filing Form FS-240 or Consular Report of Birth.  Along with the form, you should submit documentation to show that you meet all the requirements.  The form is filed at the US Consulate abroad in the country that your child lives.

The bottom line is that no one can properly gain admission into the US without either a visa, a green card or a US passport.  Seek the advice of a good immigration lawyer to make sure that each member of your family has some basis for gaining entry.

For more information or answers to your immigration question, please call or email me to set up a time to meet with me.