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My friend's child was born in Mexico some days ago, childs' mother died at birth. Father is Green Card holder, Russian citizen; mother was just Russian citizen, never applied for LPR in US. The child will have Mexican and Russian citizenship at birth. Father is in Mexico for the last several months, but works and lives in the US most of the time. Father and mother were in wedlock.

What's the right course of action for the father to take his newborn with him to US where he resides?

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  • A quick web search turned this up from the US embassy in Japan, which says that the child could get in to the US without a visa if the mother were a permanent resident temporarily absent from the US, but not the father. It looks like there are two options: petition for the child's immigration or reapply for an immigrant visa that allows the child to be included so as a derivative beneficiary. I suspect that both of these would be slow.
    – phoog
    Jan 19, 2022 at 9:19

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The child born abroad to an LPR mother during a temporary trip abroad, can enter the US as an immigrant without needing an immigrant visa, if brought to the US within 2 years of birth accompanied by an LPR parent on that parent's first return to the US after the child's birth, as described in 9 FAM 201.2-3(b)(2). However, that doesn't help this case since the mother was not an LPR and only the father was an LPR.

So it seems that the child will need to get an immigrant visa, either petitioned by the father as the child of a permanent resident, or as a derivative beneficiary of the father. Generally, a child must be born before the principal beneficiary immigrates in order to be able to immigrate as a derivative beneficiary, though 9 FAM 502.1-1(C)(2)(b)(2)(C) mentions that a child born after the admission of the principal beneficiary, but who was "born of a marriage which existed at the time of the principal applicant’s admission" can still be a derivative beneficiary. I am not sure if the parents were married as the time the father immigrated, but if so, Consular Processing for an immigrant visa as a derivative beneficiary might be an option for the child. Otherwise, the father will need to file a new I-130 to petition the child, and wait for it to get approved, before the child can go through Consular Processing. Either way, it's going to be a long process before the child can immigrate to the US.

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