Unique situation - Baby born outside of US and GC approved when out of country

[gsivaman]

Background/Timeline:
- My wife (Derivative) and I (Primary) applied for I485 in July 2015.
- Primary's I485 got approved first in May 2016 and became LPR. My wife's I485 (Derivative) GC did not get approved along with the primary.
- Derivative?s (wife) AP/EAD combo card is valid until Nov 2018.
- We travelled out of country to India in May 2017. I used the Green Card and my wife used her Advance Parole for travel.
- My wife became pregnant in India and stayed back in India as she was advised not to travel due to medical complications.
- I returned to US in July 2017 and used the Green Card at the port of entry.
- My wife's I485 (Derivative) GC got approved in Dec 2017 while she was in India. I received her Green Card here in the US.
- My wife delivered the baby in May 2018.


My wife and my baby are planning to return to the US around Aug 2018.

Based on the above, what kind if issues my wife and baby will have to face at POE when they return back in August 2018?
Is my wife considered 8 months or 15 months out of country from LPR standpoint (her GC was approved while she was in India in Dec 2017).

Did anyone face similar situation and how should they prepare for the return to the US?

Thanks in advance!

[newacct]

Background/Timeline:
- My wife (Derivative) and I (Primary) applied for I485 in July 2015.
- Primary's I485 got approved first in May 2016 and became LPR. My wife's I485 (Derivative) GC did not get approved along with the primary.
- Derivative?s (wife) AP/EAD combo card is valid until Nov 2018.
- We travelled out of country to India in May 2017. I used the Green Card and my wife used her Advance Parole for travel.
- My wife became pregnant in India and stayed back in India as she was advised not to travel due to medical complications.
- I returned to US in July 2017 and used the Green Card at the port of entry.
- My wife's I485 (Derivative) GC got approved in Dec 2017 while she was in India. I received her Green Card here in the US.
- My wife delivered the baby in May 2018.


My wife and my baby are planning to return to the US around Aug 2018.

Based on the above, what kind if issues my wife and baby will have to face at POE when they return back in August 2018?
Is my wife considered 8 months or 15 months out of country from LPR standpoint (her GC was approved while she was in India in Dec 2017).

Did anyone face similar situation and how should they prepare for the return to the US?

Thanks in advance!

One potential issue might be that her AP was only valid until Nov 2018, and she stayed abroad after her AP expired and before she became a permanent resident (plus you had already become a permanent resident at that time, so any H4/L2 status she might have had based on your H1b/L1 would have been lost), so does that cause her I-485 to have been technically abandoned (even though they didn't realize it and still approved it)? They might decide later that her green card was granted in error and revoke it.

A green card is technically only valid for re-entry after an absence of less than 1 year. She could try to enter with it and my guess is that (if it were not for the potential I-485 abandonment issue) they would probably let her in with a warning since it's her first time, it's not too much above 1 year, and because she has a decent reason for staying abroad longer (she had just given birth).

As for the child, normally, a child born during a temporary visit abroad of a permanent resident mother, can enter the US as an immigrant without needing an immigrant visa, if they enter within 2 years of birth, with a permanent resident parent on that parent's first return to the US after the child's birth. See 9 FAM 201.2-3(3)(a)(ii). If they let the mother in, that implies her visit was "temporary", so the child should be able to enter as well. As far as the US government is concerned no further document is necessary for the child other than the birth certificate. However, airlines may not be willing to board the child unless they get official documentation that they are not liable for transporting the child, and so usually one would get a transportation letter from a US consulate indicating the child can be transported to the US. However, in this case, if you went to the consulate, they might insist that the mother can't just enter on her green card, because she has been out for more than a year, and insist that she apply for an SB-1 visa, or else they won't issue a transportation letter for the child since if the mother can't enter, the child can't enter either. (I am not sure what they would say if you went to apply for it on the basis that the child will be accompanied by you to the US on your first return to the US after the child's birth, since your ability to enter is not in doubt.) So there are some complicating factors to think about.

[krypton9591]

One potential issue might be that her AP was only valid until Nov 2018, and she stayed abroad after her AP expired and before she became a permanent resident (plus you had already become a permanent resident at that time, so any H4/L2 status she might have had based on your H1b/L1 would have been lost), so does that cause her I-485 to have been technically abandoned (even though they didn't realize it and still approved it)? They might decide later that her green card was granted in error and revoke it.

A green card is technically only valid for re-entry after an absence of less than 1 year. She could try to enter with it and my guess is that (if it were not for the potential I-485 abandonment issue) they would probably let her in with a warning since it's her first time, it's not too much above 1 year, and because she has a decent reason for staying abroad longer (she had just given birth).

As for the child, normally, a child born during a temporary visit abroad of a permanent resident mother, can enter the US as an immigrant without needing an immigrant visa, if they enter within 2 years of birth, with a permanent resident parent on that parent's first return to the US after the child's birth. See 9 FAM 201.2-3(3)(a)(ii). If they let the mother in, that implies her visit was "temporary", so the child should be able to enter as well. As far as the US government is concerned no further document is necessary for the child other than the birth certificate. However, airlines may not be willing to board the child unless they get official documentation that they are not liable for transporting the child, and so usually one would get a transportation letter from a US consulate indicating the child can be transported to the US. However, in this case, if you went to the consulate, they might insist that the mother can't just enter on her green card, because she has been out for more than a year, and insist that she apply for an SB-1 visa, or else they won't issue a transportation letter for the child since if the mother can't enter, the child can't enter either. (I am not sure what they would say if you went to apply for it on the basis that the child will be accompanied by you to the US on your first return to the US after the child's birth, since your ability to enter is not in doubt.) So there are some complicating factors to think about.

this sounds about right, however I would mention that if her AP doesn't expire till November 2018, wouldn't it still currently be valid? cause it's only June 2018 currently

[newacct]

this sounds about right, however I would mention that if her AP doesn't expire till November 2018, wouldn't it still currently be valid? cause it's only June 2018 currently

Oh sorry I read the year wrong. Hmm, so she got a 2-year AP?

[krypton9591]

Oh sorry I read the year wrong. Hmm, so she got a 2-year AP?

yeah that sounds interesting to me as well, but I'm just going by what the OP said.

[gomsy]

Gsivaman..

Let me know what happens to your travel plan. I am sailing in the same boat like yours. The immigration office denied to issue a letter for my baby as they mentioned my wife is out of US for more than a year and she is inadmissible. They would suggest to file a humanitarian parole for your wife if denied providing a transportation letter for new born.

Background/Timeline:
- My wife (Derivative) and I (Primary) applied for I485 in July 2015.
- Primary's I485 got approved first in May 2016 and became LPR. My wife's I485 (Derivative) GC did not get approved along with the primary.
- Derivative?s (wife) AP/EAD combo card is valid until Nov 2018.
- We travelled out of country to India in May 2017. I used the Green Card and my wife used her Advance Parole for travel.
- My wife became pregnant in India and stayed back in India as she was advised not to travel due to medical complications.
- I returned to US in July 2017 and used the Green Card at the port of entry.
- My wife's I485 (Derivative) GC got approved in Dec 2017 while she was in India. I received her Green Card here in the US.
- My wife delivered the baby in May 2018.


My wife and my baby are planning to return to the US around Aug 2018.

Based on the above, what kind if issues my wife and baby will have to face at POE when they return back in August 2018?
Is my wife considered 8 months or 15 months out of country from LPR standpoint (her GC was approved while she was in India in Dec 2017).

Did anyone face similar situation and how should they prepare for the return to the US?

Thanks in advance!

[gsivaman]

Oh sorry I read the year wrong. Hmm, so she got a 2-year AP?

That is correct. She go a 2 year EAD/AP card. Does it play a role after the GC was issued?

[newacct]

That is correct. She go a 2 year EAD/AP card. Does it play a role after the GC was issued?

When she returns to the US, the airline will let her board because she has a valid AP. The thing is, when she enters, they will see that her permanent residency has been approved so they can't parole her; they will need to admit her as a permanent resident. But the regulations say that a green card is only valid for re-entry for a returning resident after an absence of less than 1 year. It's kind of ironic because if her permanent residency weren't approved yet, she could use her valid AP to enter, and there are no rules on how long she can be out on AP, but since it is approved, she has to enter as a permanent resident, but there are rules on after how long of an absence she can be admitted on that. I'm guessing there probably wouldn't be a problem.

As for your child getting a transportation letter, I still think it's possible the consulate might take issue with your wife's length of absence. Technically, airlines are allowed to fly the child in this situation without any transportation letter or visa; it says in the CBP carrier information guide, page 13, under "Exceptions", there is a section on "Child born abroad to Lawful Permanent Resident (LPR)". I am not sure if the airline will be convinced though.