American Spouse/Child Immigration from China Questions

[kdavid]

Hello all,

I'm an American and am planning to marry my Chinese fiance of 2 years. We have her parents approval, but only if we get married soon!

When I proposed to her I made it a point to explain that if we got married in China, the process of getting her green card could potentially be much lengthier than if we just applied for a K1 fiance visa and went to America to get married.

The K1 visa can take up to 18 months to procure, and once we land and get married in America, her green card could take up to 18 months (on the average 12). She cannot leave the country (America) until she gets her green card, but once she has it she can travel back and forth as she pleases.

Or so I've heard... What I just typed above is all conjecture based on hearsay.

My fiance has agreed to wait however long it takes for us to get back to America. Her parents, however, have not. They want a wedding now, not in 5 years. I understand their position and would like to honor their culture and customs by marrying sooner than we had originally planned.

What I'd like to know is if anyone has any personal experience with this specific situation (American's marrying Chinese either in China or in America). If so, how long did it take before your Chinese counterpart could go with you back to the States? Also, are there any sources (web, pdf, books, etc) that outline this procedure?

Also, if we were to have a child born in China, would that child be American or Chinese? How would we go about arranging papers for that child? Again, any official sources you could provide would be greatly appreciated.

Lastly, please don't flame this post on the dangers of international, specifically American-Chinese, marriages. I've read them all a thousand times and am quite certain that I know what I've gotten myself in to.

Thanks in advance for the help!

[DrWatson]

My spouse in non an American and we went though the process last year. She is not Chinese so I I'm not sure how USCIS and State Dept. will handle Chinese cases, but I doubt it is very different from what we went though. Note that last year the laws changed twice and things were very crazy for awhile. But the process has been streamlined and made more efficient with less waiting time. You should be able to get a spousal visa in about five to six months now. First you will have to go through a background and criminal record check that is performed by USCIS and once you are cleared, the State Dept will check out both you and your spouse. Finally, your spouse will be interviewed at an embassy/consulate in China. Be prepared to spend some money along the way, probably around $1000 in application and processing fees.

It is my understanding that it takes about just slightly longer to get the visa after marriage. If there is no immediate hurry to get back to the US, then I personally wouldn't bother with the K-1 visa. If the parents wish for a marriage and you want to honor that wish, then I don't think you should worry too much about waiting. You both can wait in China until the visa process wraps up, or you can go to the US ahead of her if you wish.

As for reading about the process, the situation for a Chinese spouse should be spelled out clearly on the US Embassy's website in the American Citizen Services section. You can also read about the rules at USCIS and State dept. websites as well. For reading about others experiences and advice, check out. website called visajourney.com. It is full of people from different countries going through the visa process.

If you have a child born in China, then s/he will have dual citizenship until a certain age. You would have to take the baby to the US Embassy in China and apply for a passport for your child. It is best to do this when they child is young so you can get a social security number and what not. When the child grows up and gets to a certain age, around 20 I believe, s/he has to decided which citizenship she wants to retain and which to let go.

[ipsi()]

You might want to check out www.candleforlove.com, as that's a set of forums quite specifically dedicated to this whole process.

[Lu]

Or you could have a Chinese wedding, banquet and all, with parents relatives and friends, in China, as soon as possible, and then go off to the US to get all the legal things done.

Is there a special reason the parents want their daughter to get married ASAP?

[kdavid]

Or you could have a Chinese wedding, banquet and all, with parents relatives and friends, in China, as soon as possible, and then go off to the US to get all the legal things done.

That's what we had originally planned on doing.

Is there a special reason the parents want their daughter to get married ASAP?

In her parents' mind, we've been together for quite awhile, and despite a rock on her finger, there's no evidence that the "shady foreigner" intends to stay with their daughter forever.

As you may or may not know, the Chinese can be very suspicious of foreigners, especially those that plan on taking their daughter to the other side of the planet. They feel that in order for me to fully respect their daughter (even though their daughter seemingly cares less about having a wedding or not) I need to marry her soon. Plus, I'm sure they aren't getting any 面子 when they tell their friends that their daughter is living with a foreigner to which she's not married.

My situation here is a bit difficult to judge for the long term. I've opened a school in which I have a fairly large stake. If the school continues to be successful, I plan to stay in China in order to build up a nest egg. There's no way I could save as much nor live as flexibly in the States as I am now.

Lastly, if the whole process of getting her from here to there will only take a couple years, I'm fine with that as I plan on staying in China for at least another 2 - 3 years. How long we stay after that depends on work.

[tony1343]

If you have a child, your child will probably be an American citizen period, and will never have to choose. Once an American citizen, one pretty much can only lose it if one has the intent to give up their American citizenship. Even if another country say, China, makes her or him choose, she wouldn't lose it unless she had an intent to give up American citizenship. Supreme Court cases have made it very difficult to lose American citizenship. The United States allows you to have multiple citizenships as do most nations (this has been a change in recent decades). I believe that China however does not recognize multiple citizenships. Whether you are a citizen of a country is completely determined by that countries laws. I therefore cannot help you on whether your child would be a Chinese citizen, since I know nothing about its laws.

If you child is born in China (and you are an American citizen and your wife is not), he or she would automatically be an American citizen upon birth IF you (the American citizen) have 5 years of prior physical presence in the United States, with at least 2 of those after you attained the age of 14. This is from the Immigration and Naturalization Act, Section 301(g). This physical presence requirement is the prevent the passage of American citizenship down the generations, even when no one in the family has lived in the U.S. for many years. I believe some countries like Italy use a pure jus sanguinis system in which there is no physical presence requirement. So I believe because of this I am actually an Italian citizen under the Italian Nationality Act, though to get a passport I'd have to find the proof which might be difficult.

Your child would automatically be a citizen, but I think you would want to go to the Consulate as soon as possible to register a foreign birth abroad and get a passport (for evidentiary purposes or whatnot).

I'm not a lawyer, so I definitely recommend that you get legal advice if possible (and so this is just general information for everyone).

Now I guess, if China only recognizes one citizenship; they might possibly claim someone is only a Chinese citizen and not an American citizen and refuse to grant certain rights such as reporting to the Consulate or whatnot if in trouble, but I don't know how that plays out.

[DrWatson]

Lastly, if the whole process of getting her from here to there will only take a couple years, I'm fine with that as I plan on staying in China for at least another 2 - 3 years. How long we stay after that depends on work.

Be careful, you will need to plan your timing out then. Once you get the green card for your spouse, you have to move to the US or you will lose it. So once your spouse passes her interview at the embassy, you have 180 days to go to the US and activate the green card. After that you are free to leave again, but if your spouse stays outside of the US for more than 365 days she automatically relinquishes her visa and will have to start the process over from the beginning.

I have read about re-entry permits, but it seems like they are only available to US government employees who can make the case for extended time outside of the US. By applying for a spousal visa (green card), you are supposed to be trying to live your lives in the US and not abroad. If you come and go every year you can still lose your visa if USCIS decides that you're not making your residence in the US. It has happened to immigrants who did the half a year in the US, half a year abroad lifestyle. Read very carefully about everything, the rules are amazingly gray and not so clear until you dig further.