What is the Immigration Status of a Child Born Abroad to Two Permanent Residents?

Q:  My spouse and I are both U.S. Lawful Permanent resident Green Card holders who are currently residing abroad in Canada for the next year. My wife is pregnant and we are expecting the birth in Canada by the end of the year. How do we make sure our child can return to the U.S. with us?

A:  The child would be eligible to enter the United States as a Lawful Permanent Resident (LPR) assuming certain requirements are met:

  1. The child must first enter the U.S. before the age of 2;
  2. The child’s entry must coincide with the LPR parent’s first return to the U.S. after the birth of the child; and
  3. The LPR must be ‘admissible’ (i.e. they cannot have abandoned their status or be otherwise inadmissible under INA §212).

See 8 C.F.R. § 211.1(b)(1).

Assuming the above requirements are satisfied, when the child and the accompanying Green Card holder parent present themselves for admission into the U.S., the LPR will be admitted as a returning LPR and the child should be issued new documentation (Form I-181) by U.S. Customs & Border Protection confirming the child’s status as a LPR.

It is extremely important for a couple to be cognizant of the above requirements because failure to do so would entail that the LPR parents file Form I-130 on their child’s behalf.  In that case, the child is categorized under the F-2A Category and could be subject to a backlog – thus either causing the family to remain outside the U.S. until the Priority Date is current or the parents being separated from their minor child.

If you or a loved one have immigration questions contact our experienced U.S. immigration attorney in Los Angeles for a FREE consultation.

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