Generally, an alien seeking to enter the United States for the first time as a lawful permanent resident (LPR), or an LPR returning from a brief and casual trip abroad for which he or she had no intention of abandoning residency in the United States, must present one of the following in order to be admitted into the United States under LPR status pursuant to 8 C.F.R. § 211.1(a)(1):
- A valid, unexpired immigrant visa;
- A valid, unexpired Form I-551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year, or in the case of a crewmember regularly serving on board a vessel or aircraft of the United States registry seeking readmission after any temporary absence connected with his or her duties as a crewman;
- A valid, unexpired Form I-327, Permit to Reenter the United States;
- A valid, unexpired Form I-571, Refugee Travel Document, properly endorsed to reflect admission as a lawful permanent resident;
- An expired Form I-551, Permanent Resident Card, accompanied by a filing receipt issued within the previous 6 months for either a Form I-751, Petition to Remove the Conditions on Residence, or a Form I-829, Petition by Entrepreneur to Remove Conditions, if seeking admission or readmission after a temporary absence of less than 1 year;
- A Form I-551, whether or not expired, presented by a civilian or military employee of the United States Government who was outside the United States pursuant to official orders, or by the spouse or child of such employee who resided abroad while the employee or service person was on overseas duty and who is preceding, accompanying or following to join within 4 months the employee, returning to the United States; or
- Form I-551, whether or not expired, or a transportation letter issued by an American consular officer, presented by an employee of the American University of Beirut, who was so employed immediately preceding travel to the United States, returning temporarily to the United States before resuming employment with the American University of Beirut, or resuming permanent residence in the United States.
While the regulations found within 8 C.F.R. § 211.1(a)(1) explain the required documentation for an LPR to return to the United States, they do not address a scenario in which an LPR has a child while abroad [in a departure that would not vacate LPR status] and then seeks to return to the United States with the child. However, this scenario is addressed by regulations found in 8 C.F.R. §§ 211.1(b)(2).
8 C.F.R. § 211.1(b)(2) explains that the visa requirement for entry as an LPR in 8 C.F.R. § 211.1(a) will be waived for such a child of an LPR without a fee provided that:
- the child was born during the temporary visit abroad of a mother who is an LPR or national of the United States; and
- the child's application for admission to the United States is made within 2 years of the birth; and
- the child is accompanied by the LPR parent who is applying for readmission as an LPR for the first time since the birth of the child; and
- the LPR parent is found to be admissible to the United States.
This regulations also inform the Department of State's (DOS) Foreign Affairs Manual at 9 FAM 42.1 N1.1, which provides guidance to DOS officials on when such a child may enter the United States without an immigrant visa:
- The child was born during the LPR mother's temporary visit abroad provided that:
- Admission is within 2 years of birth; and
- Either accompanying parent is applying for readmission upon first return after the birth of the child.
Section 14.5 of the Inspector's Field Manual (IFM) explains that a child born abroad of an LPR who is admitted to the United States for the first time will be admitted in class NA3. Upon admission at a port of entry, the child's passport will be stamped “temporary I-551,” and Customs and Border Protection (CBP) officials at the port of entry will complete and issue a Form I-181, Memorandum of Creation of Record of Lawful Permanent Residence. CBP officials at the port of entry will submit the Form I-181, Form I-89 (biometric information), and a copy of the child's birth certificate to USCIS so that a Form I-551 for the child may be produced.
The child's Form I-551 should arrive in the mail within 30 days. If, after 30 days, the Form I-551 has still not been received, the child's parent should make an Infopass appointment with USCIS to confirm that USCIS had the correct address and if not, ultimately file a Form I-90, Application to Replace Permanent Resident Card.
The first requirement for a child born abroad of an LPR mother to be admitted without a visa is that the LPR parent accompanying the child must be admissible as an LPR. Secondly, the LPR parent must be making his or her first return to the United States since the birth of the child, and it must be within 2 years of the birth.
If an LPR mother has a birth during a temporary visit abroad, it is imperative that she, or the child's father if he is an LPR, have the child accompany whichever LPR parent is returning on the first return to the United States within 2 years of the birth. If one or both LPR parents reenter the United States without the child, or stay abroad for longer than 2 years, the waiver of the visa requirement for the child will be inapplicable. When applying for admission, the accompanying parent will need to submit evidence of the child's parentage as well as proof that the child was born during the validity period of LPR status. We highly recommend that the accompanying parent be prepared with any available documentary evidence of his or her relationship to the child, including, but not limited to, the child's passport and birth certificate. If an LPR parent in this situation has questions regarding his or her own admissibility as an LPR, or about the required documentation to demonstrate that his or her child may have the immigrant visa requirement waived, he or she should consult with an experienced U.S. immigration attorney immediately in order to learn what may be necessary to resolve any issues expeditiously.