CRBA during the fiance K-1 visa process

A child born abroad to a US citizen parent is eligible for US citizenship with CRBA. No K-2 visa is required.

 

The first thought that comes to your mind is — “Am I going to be a parent?”

Instantly, the second thought is how do you bring your child to the US? a K-2 visa or US citizenship? How does all of this work?

In fact, is your K-1 visa approved any quicker because of your child?

 

Well, the fact is that nothing special happens whether or not your pregnant fiance is in the K visa process. If you’re expecting a child, it only matters where the baby is born.

For a child born abroad, your option is to get a Consular Report of Birth Abroad (CRBA) and claim US citizenship. That way, your child gets US citizenship / passport to freely travel to the US regardless of the status of your fiance’s K visa.

Let’s talk about what to do if your fiance is expecting a child or if the child is already born in a foreign land. Then we’ll talk about how this helps your proof of relationship.

 

What’s a “child”?

Funny enough, we actually have to define what “child” means. Bear with me for a moment, you’ll see why it’s important.

US immigration laws explains “child” precisely when it comes to citizenship in a foreign land. The best definition of a child is that it is your genetic offspring.

If you are the genetic father and your foreign fiance is the genetic mother, then your child is eligible for CRBA and US Citizenship.

If they’re not your genetic kids, they’re not eligible for CRBA. Although they can get a K-2 visa. Meaning if your fiance is pregnant from another father, then the child is only eligible for a K-2 visa not US citizenship.

Secondly, your fiance’s adopted children are only eligible for a K-2 visas (not CRBA).

And finally, the child cannot simply be a biological child. Because remember, there’s such a thing as surrogacy — which is biological, but it’s not genetic. Meaning surrogate children are not eligible for CRBA. Depending on child custody, they may not even be eligible for a K-2 visa since you’re technically not the parent.

In summary:

1. Only genetic children of a US citizen parent are eligible for CRBA

2. Your fiance’s children (from another father) are not eligible for CRBA or US citizenship, but they are eligible for a K-2 visa.

3. Adopted children are not eligible for CRBA, but they can get a K-2 visa.

4. Surrogate children are not eligible for CRBA, and they may not get a K-2 visa.

All of this is referenced in laws INA 309 and 301(g) which talk about “child born out of wedlock”. The term “out of wedlock” means before marriage.

 

Common questions about having a child born overseas

Now that you know who a “child” is, let’s get the easy questions out of the way.

✦ Can I list my unborn children in the I-129F or K-2 visa petition?

No. Unborn children can’t be listed on the I-129F fiance petition form. You can’t list them for a K-2 visa, either. Only after a child is born they’re able to apply for any benefits – either a visa or US citizenship. So, if your fiance is pregnant, you have to wait.

✦ Child born to US citizen mother (on US soil)

If your child is born on US soil, then he/she is already a US citizen. You’re not required to get a visa or CRBA. Even if the father is in the K-1 visa process from overseas. It doesn’t affect anything regarding the child’s citizenship (INA section 301(a)).

✦ Child born to US citizen mother (abroad)

If you’re a US Citizen mother who gives birth abroad, your child is eligible for CRBA. Childbirth doesn’t affect the father’s fiance visa.

✦ Is my child entitled to US citizenship if I’m a US citizen parent?

Not necessarily. You have to apply for US Citizenship upon birth abroad. There are a couple of requirements (we’ll discuss it below) before you can get a CRBA and US citizenship. Most people qualify but not all do.

 

Children born abroad to a US citizen parent (during K-1 visa)

If you’re a US citizen parent and either you or your fiance is pregnant/giving birth overseas, then you’ve got a couple of things to figure out.

To make the discussion easier, my flowchart diagram below explains your options.

Basically, a genetic child must apply for a Consular Report of Birth Abroad (CRBA) FS-240. This means the US Embassy recognizes your child’s status as a US Citizen.

Keep in mind, even if your fiance is in the K-1 visa process, it doesn’t affect your child’s ability to get a CRBA + US passport. They’re treated as two separate applications.

 

 

Let’s talk about what this diagram means. If your child is born…

Before filing the I-129F

Genetic child: apply for a CRBA + US passport immediately. List him/her in the I-129F but don’t apply for a K-2 visa with the Embassy. Because by that time, your child will already be a US citizen.

Not genetic child: list the child on the I-129F and later apply for a K-2 visa (if you want). Because he/she can’t apply for CRBA.

During I-129F processing and before the K-1 visa interview

Genetic child: follow the same step as before. Regardless of the status of the foreign parent’s K-1 visa, the child can separately file for a CRBA and US passport.

Not genetic child: wait until the interview to apply for a K-2 visa. This usually means you’re going to submit a separate DS-160, pay a separate visa fee, etc. to prepare for the interview with a child.

After the K visa interview

Genetic child: after your fiance gets a K-1 visa approved, follow the same procedures to get a CRBA. Again, the status of the fiance K-1 visa doesn’t affect the child’s ability to get a CRBA and US citizenship.

Not genetic child: after K-1 visa approval inform the Embassy right away. They will most likely instruct you to apply for a K-2 visa and follow the same procedures as any other K-2 visa child would.

After entry into the US

If a child is born on US soil, then the child is automatically a US citizen. This is regardless of whom the child’s genetic parent is. There’s no requirement for CRBA. There is obviously no K-2 visa required. Your child will get a US birth certificate.

A chart similar to my flowchart can be found from the USCIS (nationality chart) although it’s not as easy to read as the diagram I’ve given above.  

Alright, that covers what happens during the different stages of the fiance visa process. And if your child is born during that time, you know what steps you have to take. Now, I’ve mentioned Consular Report of Birth Abroad (CRBA) many times. Let’s now talk about what the process is to get a CRBA for your child.

 

CRBA during the Fiance K-1 visa Process

A Consular Report of Birth Abroad (CRBA) form FS-240 is proof that a child has US citizenship. It’s not a birth certificate — keep that in mind — it’s just confirmation of US Citizenship. The country where your child is born will actually issue a birth certificate.

Although your child gets citizenship, it still doesn’t mean he/she can enter the US. For that, you obviously need a US Passport. So, normally when you apply for a CRBA, you also apply together for your child’s US passport.

To clarify: your fiance’s K-1 visa situation doesn’t affect your genetic child’s ability to get US citizenship. As long as the baby is eligible for a CRBA, you won’t need a K-2 visa.

 

Requirements for a CRBA

The requirements to get a CRBA during the K visa process aren’t that complicated. Again, whether or not your fiance (child’s parent) is applying for a K-1 visa won’t affect the CRBA.

In fact, your child can get a CRBA and US Passport long before you even submit your I-129F or go for the K-1 visa interview. In addition, your child can be in the US before your fiance gets here. It depends on when you apply.

In any case, as long as you understand that they’re two completely different procedures, you can begin. In order to qualify for the CRBA and US passport, here’s what you need:

(1) One parent must be US citizen at the time of birth. The US parent must be genetic. A non-genetic child, adopted child, or a surrogate child of your foreign fiance is not eligible for a FS-240 CRBA. Although they may get a K-2 visa. Keep in mind, the parent must be a citizen at the time of the child’s birth.

(2) US parent meets “physical presence” requirement. The US parent must have physically spent at least 5 years (two years after age 14) in the US within their lifetime. Prove this with evidence such as paying taxes, driver’s license, residency proof, etc. Go to any Embassy’s website and download a list of acceptable items. For example, here’s the Philippines checklist for getting a CRBA:  

Notice the physical presence requirement.

(3) Child less than 18 years of age. The child must be younger than 18 years. For most of us, that’s not a problem. Because we apply as soon as he/she is born. But if for some reason you’re late — well, you have the next 18 years. Just realize, that the later you do this, the harder it is to convince an officer about your documentation and eligibility.

(4) Required documents

Passport style photos

Form DS-2029 –  the actual form to apply for a CRBA

Passport application DS-11 – to apply for a US passport

DS-3053 – if one parent is not going to attend the interview

Child’s birth certificate

Proof of US Parent’s citizenship

Foreign parent’s identification

Any fees

Various other proofs for your particular situation

(5) US Parent Financially supports child. The US parent agrees to financially support the minor once he/she arrives in the US until age 18. The form DS-5507 has to be filled out. It’s similar to an affidavit of support. But in reality, any written agreement will work.

(6) Parents must attend the interview. The US Parent or foreign parent should both be present with the minor child. It’s not required. And if the US parent is not present at the interview, you must submit a DS-5507.

Check, for example, the US Embassy’s instruction on CRBA in Kuala Lumpur. In it, it’ll show the different steps.

So, that’s a brief overview on what the requirements for getting a CRBA are. If you’re ready to get one for your child, now let’s check what the actual process is.

 

The CRBA process

The majority of the steps are the same for each Embassy. However, they may have some slight differences in some spots. Here’s what all applicants have to do:

(1) Fill out the DS-2029. The main form everyone uses to apply for a CRBA.

(2) Gather documents. There are a bunch of supporting documents you must bring along. You’ve already seen the list above. Bring all required documents – such as application, passport photos, CRBA fee and Passport fee (if applying for one). Keep in mind that you do not need to perform DNA testing unless the Embassy specifically requests it.

(3) Make an appointment. When you’re ready to present your case, you set an appointment with consulate.  Appointments are generally be set online or through contact with Embassy. Check for details. For example, in Frankfurt, Germany the Embassy allows you to schedule appointments online.

(4) Attend Interview. Present your case at the interview. Show them your documents and prove that (1) you are genetically related to the minor child; and (2) you fulfill the requirements for the CRBA. The Officer will review your paperwork and perhaps inquire about the relationship.

(5) Set up Courier. A courier service brings your approved CRBA and passport (if you applied for one). You will get the FS-240 and a US Passport shortly in the mail or a pick up facility.

That’s the entire process. Although it seems like a long process, it normally takes only 2-4 weeks to process routine cases. This includes application, approval, and issuance of CRBA and passport.

However, you may see longer holds if they’re backed up.

But don’t let the quick timeline get you complacent. Get the CRBA as soon as possible so your fiance can fly together with the child as soon as the K visa is approved.

 

Problems during the CRBA process

In general, there could be a few roadblocks if your fiance is pregnant. Let’s look at the diagram again.

 

 

Realize that if your fiance’s K-1 visa is approved before giving birth, she can get on the plane to come to the US and give birth here. However if she’s too far along in the pregnancy, airlines may refuse to take her on board.

So, you have to make a wise decision:

➤ Wait in her home country to give birth if she’s too far along the pregnancy; or

➤ If she’s not too far along, she can try to board a plane to come to the US. Remember if the airline refuses, then you will have to give birth in the foreign country, then apply for a CRBA and US passport.

The second small issue is taking the K-1 visa medical exam while pregnant. During the medical exam, you will be given a lead apron to shield from radiation to the baby.

 

Does it help your fiance visa case if a child is born?

So, does it make the process any faster if you have a child? Well, no. No special attention or expedite is given to pregnant couples or those who have a child. The timeline of your K-1 visa is not affected by pregnancy or CRBA.

Okay then, if things don’t go any faster, does it help with your chances of a K-1 visa approval? After all, having a child together is a serious commitment. It’s great proof of (bona fide) relationship, right?

Most of the time, yes – it’s helpful. It shows that you’re likely to get married. Which is the big requirement for K-1 visa. And it shows that you have a somewhat bona fide relationship.

It also shows that you’re likely to apply for the family to be together. You see, they know you’ll apply a petition to bring the family to the US at some point. Either using the fiance visa, spousal visa, or immediate relative visa. That’s why they’re usually convinced of the relationship with a pregnancy or childbirth.

However, there’s no law saying that a mother who gives birth to a US citizen abroad will  be given approved a visa. And sometimes childbirth can get your K-1 visa denied. You see, Consulars are also aware that for many traditional countries, premarital childbirth is uncommon.

They don’t object to the premarital childbirth. But they suspect you’re already married and applying for the wrong visa. I’ve seen cases where K-1 visas were denied because the officer suspected the couple of being married and not just engaged after childbirth.

So, it’s a mixed situation. For most of us, it helps the K-1 visa but for some it may hurt. But don’t let that stop you from enjoying the wonderful time.

 

Your options: CRBA or K-2 visa

So, let’s wrap up  the discussion. Here are the general rules regarding childbirth overseas.

The process depends on whether your genetic child is born in a foreign land. If so, your first option is a CRBA and passport to claim US citizenship. That way, your child can come to the US whenever regardless of the status of your fiance’s K visa.

The other scenario is if your pregnant fiance enters the US and then gives birth to your child. In this case the child is automatically a US Citizen.

If none of these apply to you, then you will have to get a K-2 visa.

 

Applying for a CRBA during the fiance visa process? How was your experience?