Is an American Woman's Immigrant Husband Eligible for a Green Card and Citizenship After Their Child is Born in the U.S.?
In the complex world of U.S. immigration law, it can often be challenging for a foreign-born husband to obtain legal status, even if his American wife already holds citizenship and her child is born in the United States. This article aims to demystify some of these complexities.
US Citizenship for the Child
Firstly, it's important to note that any child born in the United States, with the exception of a child born to foreign diplomats, automatically becomes a U.S. citizen from the moment of birth. This is a fundamental principle of U.S. immigration law and is enshrined in the 14th Amendment to the U.S. Constitution. This citizenship does not change based on the immigrant status of the parents.
Even if the parents are undocumented or on non-immigrant visas, the child born in the U.S. will still hold U.S. citizenship. While this is a critical milestone, it does not grant any immediate immigration benefits to the parents. Non-immigrant visa holders must leave the U.S. upon the expiration of their I-94. Undocumented individuals should also heed the advice to leave as soon as possible to avoid the complications that may arise from continued unauthorized stay.
Immigration Benefits for the Immigrant Husband
If an American woman marries an immigrant father and has a child in the U.S., the immediate benefit for the immigrant partner is quite limited. The child's automatic U.S. citizenship can be a significant milestone, but it does not immediately entitle the father to a green card or citizenship.
There is a specific exception to the immigration laws that allows for spouses of U.S. citizens to apply for a green card, which can eventually lead to citizenship. However, this step is not automatically granted and comes with several caveats. These include the immigration status of the father, the way he entered the U.S., and any criminal history he may have.
Some Challenges Navigating the U.S. Immigration System
The U.S. immigration system is notoriously complex and harsh. Many spouses of U.S. citizens face significant challenges, such as denials of immigrant visas, permanent bars from returning to the U.S., and the need to serve bans for entering the country illegally.
Examples of Difficulties
For instance, a couple I recently assisted faced difficulties due to improper legal advice. The father, who is the husband and father of a 4-year-old U.S. citizen, was sent abroad for his immigrant visa interview because of a not-too-knowledgeable attorney, only to be denied due to a simple drug possession conviction that occurred 15 years ago. Another couple encountered a case where the green card application of the immigrant husband was denied due to his admission of smoking marijuana shortly after the death of their baby from SIDS, despite not having any criminal conviction. These examples highlight the harshness of the current U.S. immigration landscape, where simple mistakes or life events can have devastating consequences.
Legal Path Forward
While immediate eligibility for a green card or citizenship is not automatic, there is still a glimmer of hope for some couples. If the father entered the U.S. legally and overstayed his visa, his American wife can petition for him to receive a green card. Unless the father is inadmissible, this process can be initiated, and a green card issued. However, the situation becomes less favorable for an immigrant husband who entered the country illegally or is undocumented, as they are likely to be denied a green card. In such cases, consulting a reputable immigration attorney is crucial. This professional can assess the possibility of an appeal, particularly if it is based on exceptional hardship to the U.S. citizen spouse and child if the immigrant is deported.
For a couple facing these challenges, the initial steps are to seek legal counsel and gather all necessary documentation. An immigration attorney can guide the process, ensuring that all legal protections and eligibility criteria are understood and met.
Conclusion
The journey to legal status for an immigrant husband who is married to an American citizen and has a child in the U.S. can be daunting, but it is not entirely without hope. By understanding the complexities of U.S. immigration law and seeking the right legal guidance, many couples can find a path forward, even if it is a challenging one.
When considering this partnership, it is important to consult with a professional who can provide the necessary guidance and support. USCIS has comprehensive resources online, and consulting with a reputable immigration attorney can be a critical step in navigating the process successfully.
By providing education, support, and guidance, immigrants can work towards legal status and ensure they are contributing positively to their communities and families.