World Journal Weekly Q & A - June 7, 2009

Q & A 1. 2. 3.


Q&A 1.

Baby Will be Born in June and We Will be Returning to China - What Steps to Take to Legally Establish Her U.S. Citizenship?

Liu reader asks:

My husband and I are both Chinese citizens studying and working in US for the past nine years. We have been using non-immigrant visas. We plan to return to and stay permanently in China as soon as my current job contract (and H1-B visa) ended in August 2009.

Our first baby is to be born in the coming June and we both agree to apply for a US birth certificate, social security number, and US passport for her before leaving US. We wish the child to have US citizenship and be free to return to US anytime for higher education, jobs, or just living as she grows up, but before the child is independent, she will definitely live with us in China.

My questions are:

- Is US birth certificate, SSN, and US passport equivalent to legal establishment of US citizenship?
- Do we also need to purchase and file US Citizenship Application to legally establish the child's US citizenship?
- Is there time restriction for the application? Specifically, her qualification for US citizenship will be based on the 14th Amendment of US Constitution, then does she has to file before she turns certain age or before she has resided in non US territory for certain amount of time? The child will probably live in China until she graduates from college at age 22. Do we have to file on her behalf before she leaves US at this time? Can the application be filed from overseas?

Dear reader:

A child which is born in the United States is automatically a U.S. citizen. To insure that there is no question concerning the child's U.S. birth at a later date, you should apply for her U.S. passport. There is no need for any further actions on your behalf. Regardless of whether the Chinese government regards her status differently, the U.S. regards her as a citizen of this country. She can only lose U.S. citizenship if she commits acts expatriating herself from the U.S. such as voluntarily renouncing U.S. citizenship after reaching the age of 18, treason, holding high political office in China or serving in its armed forces as an officer or in any capacity if the armed forces are engaged in hostilities against the U.S.

 

Q&A 2.

It Took Five Years (2002-2007) for Me to Receive My Regular Green Card from Political Asylum. Can I Apply for Naturalization Now?

Wu reader asks:

I received my political asylum green card in 9/02 from USCIS. Five years later, in 8/07, I received my regular green card from USCIS. Therefore, I have already resided in the U.S. legally for over 6 years. Can I file for naturalization application now?

Dear reader:

I assume that when you talk about different political asylum green cards, you are incorrect in that the first card that you are referring to is for conditional asylum based upon persecution under coercive family planning policies of the home country. If so, you cannot file for your naturalization at this time. You must wait for five years from the date which is given for your permanent residence on the front of your green card. That would be the regular green card to which you are referring. U.S.C.I.S. gives a one year roll-back for asylum based green card cases which is reflected on the front of your card.

 

Q&A 3.

I Just Got Married to a U.S. Citizen; My H-1 Status Has Ended; and My Parents Filed I-130 for Me Before - What Do I Do Now to Transfer My Sponsorship?

Lily reader asks:

I came to U.S. under an F-1 visa. After I received my master degree, I found a job and the company filed H-1 B status for me. Unfortunately, I was laid off and now overstayed. In 2004, my parents filed green card application for me, but I am still waiting for priority date to become current. I have now married my U.S. citizen husband and thinking to have him applying green card for me. My questions are:

1. Which form I should be using to notify USCIS that my U.S. citizen husband would replace my parents for my green card application?
2. What kind of forms and fee are needed for a U.S. citizen husband to apply for his wife?
3. My H-1 B visa has already expired for over one year, is there any limitation on my case?

Dear reader:

1 You and your husband will be filing new paperwork for your permanent residence. You do not need to notify U.S.C.I.S. concerning your parent's previous petition for you.

2 Your husband will fill out the I-130 petition for alien relative and provide G-325A biographic data sheets along with affidavit of support (I-864) paperwork. You will have to fill out the I-485 adjustment of status application, G-325A biographic data sheets, and file with documentation of your husband's U.S. citizenship, your birth, marriage, termination of former unions of either you or your husband, medical examination, copy of your passport and I-94 card. The filing fee is $1,365. If you so desire, you can also request employment authorization on form I-765 and advance parole on form I-131 to work here or leave the country during the time that the application is pending . (Kindly note that so long as the ending date on the H-1B paper has not expired by 180 days by the time that your adjustment of status application is filed, or you have received a notice ending your status by U.S.C.I.S. and 180 days have not passed, you may leave the country on advance parole and not be barred upon return).

3 Since you are married to a U.S. citizen, your overstay under your H-1B status will not prevent you from adjustment of status to permanent residence before the U.S.C.I.S.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.