Can I file for my brother who was born under diplomatic immunity? 3 Answers as of June 09, 2011

I am in the process of filing my application to become a naturalized US citizen (I-400) and would like to also file a I-130 petition for alien relative, for my brother. The issue is that he was born in the US under diplomatic immunity and has been denied a US passport in the past. He is unable to file for a green card on his own because he has not lived in the US continuously: we left the US after when dad was no longer a diplomat. Can I apply for a green card for him as if he is an alien? If so will he have to obtain his green card through the consulate outside of the US?

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Theresa E. Tilton, Attorney at Law
Theresa E. Tilton, Attorney at Law | Theresa E. Tilton
This is a very interesting question. Children of diplomats are excluded from the "jus soli", the law that anyone born in the US is an American citizen. These children are considered citizens of their parents' home country. For instance, the present King of Thailand was born in Massachusetts, while his parents were college students there. Imagine if the King of Thailand were an American citizen! When you are naturalized, yes, you will be eligible to petition for your brother's permanent residence (green card). You will file this petition here in the US, and the visa center in will notify you when there is a visa available for your brother. There is a long wait for siblings of US citizens.
Answer Applies to: Washington
Replied: 6/9/2011
Fong & Associates
Fong & Associates | William D. Fong
Yes, you can file for your brother. As a US citizen, your brother is a Family-based fourth preference (FB-4), with the priority date currently backlogged over eleven years. You should consult with an immigration attorney as the filing of the I-130, will make it more difficult for him to receive a nonimmigrant visa.
Answer Applies to: Texas
Replied: 6/9/2011
Calderón Seguin PLC
Calderón Seguin PLC | Ofelia L. Calderon
Of course, you can file a petition for your brother when you get your citizenship. That does not mean that he will be able to get the green card here in the U.S. if he is here illegally. If that is the case, he would need to go to the consulate and would likely need a waiver which may be difficult since it must be based on a U.S. citizen or Lawful Permanent Resident spouse or parent. If he is not here and has no illegal time, then you can file the petition and wait for the visa to become current in 7 to 10 years. At that point, he'll be able to apply for his immigrant visa at the Embassy. These diplomatic issues can be complicated. You may want to consult with an experienced attorney to make sure that everything is done properly and to confirm once more that your brother is not eligible for some other status.
Answer Applies to: Virginia
Replied: 6/8/2011
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