I am a US citizen and my girlfriend is Italian. She is pregnant and currently staying with me. She has entered the country with a waiver-visa, and so she will be able to stay up to a period of three months only. Our baby is due at the end of August-early September and he will be born in the US. As the mother of a US citizen, would she be allowed to apply for a permanent visa?

Check out my article on family based immigration if you have not already done so. INA §201(b)(2)(A)(i) defines the term "Immediate Relatives" as the spouse, children and parents of a citizen of the United States except that, in the case of parents, these citizens shall be at least 21 years of age. Your girlfriend's U.S. citizen child could not petition her for permanent residence unless the child was at least 21 years of age.

You may wish to consider marrying your girlfriend and petitioning her yourself under the immediate relative family-based category. Aliens under the Visa Waiver Pilot Program ("VWPP") are ineligible to change status (within the United States) from VWPP to another nonimmigrant category. They are also generally ineligible for adjustment of status to permanent residence as well. However, under INA §245(c) immediate relatives or U.S. citizens who entered under the VWPP are not barred from adjusting status to permanent residence.

If you intend to marry your girlfriend and file for adjustment of status, be careful to make sure that she does not fall out of status before you file for adjustment because, among other things, you will have to instead apply for adjustment under INA §245(i) and pay a sum equal to five times the normal adjustment fee. INA §245(i) will cease to be effective on October 1, 1997.

I am a Canadian citizen with a green card. I have lived in the United States for 12 years and am married to a U.S. citizen by birth. The company I work for is transferring me to Toronto. I don't know how long this transfer will be for. How can I maintain my status in the U.S.? My daughter was born in the U.S. and my son was born in Canada, although he never resided there. What would their status be in Canada? Can they have dual citizenship?

You need a valid entry document when you seek readmission to the United States after an absence abroad. Your Form I-551 (green card) is suitable for a temporary absence not exceeding one year. After that, you require a returning resident permit or a new immigrant visa issued by a U.S. consulate abroad.

Even though you are out of the United States for less than one year, your I-551 alone may not protect you from an allegation that you have abandoned your permanent residence. This is an issue of intent rather than merely an issue of time. You may be able to establish intent by maintaining sufficient ties to the United States during your absence. However, a returning resident permit is considered prima facie intent to retain residence so it might be a good idea to get one before you leave. Returning resident permits are valid for two years and are issued only where:

1. the applicant is a lawful permanent resident;
2. the applicant has not abandoned his or her U.S. residence;
3. the application is made in good faith in connection with a temporary visit abroad; and
4. in the Attorney General's opinion, the proposed departure would not be contrary to the interests of the United States.

Dual citizenship is recognized in both the U.S. and Canada. If your Canadian born son is the natural child of your U.S. citizen husband, he may have acquired U.S. citizenship through birth abroad. However, I don't know enough about the facts to advise you on that matter. Your daughter is a U.S. citizen but, as your child, she may also have a claim to Canadian citizenship.

Assuming that your daughter was born after February 14, 1977 and that you were born in Canada rather than naturalized as a Canadian citizen, the Canadian Citizenship Act provides in para. 3(1)(b) that a person is a citizen if the person was born outside Canada after February 14, 1977 and, at the time of the birth, one of the parents (other than an adopting parent) was a Canadian citizen. No formal registration of birth abroad is required.