Giving birth is a momentous occasion, but the joy can quickly turn into concern and confusion if an alien is in the process of immigrating to the United States or is a lawful permanent resident (LPR or green card holder) outside the United States at the time of the birth. Our office is frequently contacted by immigrant visa holders and LPRs who have given birth to a child abroad to learn how they can bring their child to the United States. In some situations, the individuals planned in advance to give birth to a child abroad whereas other times emergent circumstances have resulted in the birth overseas. As a general rule, any alien applying for admission to the United States for lawful permanent residence, or a lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States must present one of the following documents to Customs and Border Protection (CBP):

1. a valid, unexpired immigrant visa;
2. a valid, unexpired Form I-551, Permanent Resident Card (Green Card);
3. a valid, unexpired Form I-327, Permit to Reenter the United States (Reentry Permit);
4. a valid, unexpired Form I-571, Refugee Travel Document, properly endorsed to reflect admission as a lawful permanent resident; or
5. an expired Form I-551, Permanent Resident Card (Green Card), accompanied by a filing receipt issued within the previous six months for either a Form I-751, Petition to Remove the Conditions on Residence, or Form I-829, Petition by Entrepreneur to Remove Conditions. See 8 C.F.R. §211.1(a) [PDF version].

This documentation requirement can be daunting to a new parent of a child born outside the United States. A child born outside the United States to an immigrant visa holder or lawful permanent resident will not have one of these required documents. It would take months if not years to obtain such a document if the foreign-born child were required to go through normal immigrant visa processing.

Fortunately, the Federal Regulations contain a waiver of the above-mentioned documentation requirement for certain children born outside the United States to an immigrant visa holder or green card holder. This waiver does not require the alien parent to file an application or pay a fee. A child born subsequent to the issuance of an immigrant visa by the U.S. Embassy/Consulate to his/her accompanying parent will be admitted to the United States. The alien parent will need to present the original or certified copy of the child’s birth certificate. This birth certificate must be accompanied by a certified English translation if in a foreign language. It is important to keep in mind that the alien parent must enter the United States during the visa validity period and be admissible; otherwise, the alien parent and child will be denied admission.

Similarly, a mother who is a green card holder or national of the United States who gives birth to a child during a temporary trip overseas will not need to obtain one of the above-mentioned documents to return to the United States with her foreign born child if certain criteria are met. The child must seek admission to the United States within two years of his/her birth. When seeking admission to the United States, the child must also be accompanied by the parent who is seeking readmission as an LPR. Not only must the parent accompany the foreign-born child, but this must be the parent’s first return to the United States since the birth of the child. The accompanying parent must also be found admissible to the United States at the port of entry by Customs and Border Protection (CBP); otherwise, the alien parent and child will be denied admission.

All the above-mentioned criteria must be met. If an immigrant visa holder or LPR who has given birth to a child overseas does not meet all the waiver requirements, the alien parent will most likely need to file an immigrant visa petition on behalf of the foreign-born child. It could take months if not years for a foreign-born child to be admitted to the United States if he/she were required to go through normal immigrant visa processing. This is why it is important that if you or a loved one is an immigrant visa holder or LPR and has or intends to give birth to a child abroad, an experienced immigration attorney is contacted immediately to make sure the appropriate waiver criteria are met.

References

8 C.F.R. §211.1 [PDF version]
9 FAM 42.1 [PDF version]