By C.J. Lyford, Esq.*
June 1, 2007 (rev.) Note1
As most of you know, the Child Citizenship Act of 2000 (CCA)Note 1 provides for the "automatic" acquisition, that is acquisition as a matter of law, of U.S. citizenship to many foreign born children (adopted and not adopted) of U.S. citizens, provided that the following qualifications are met: 1) at least one parent of the child is a U.S. Citizen (USC), 2) the child is under the age of eighteen years; or was under the age of 18 at the time of the effective date of the CCA (that is, February 27, 2001), 3) the child is residing in the U.S. in the legal and physical custody of the USC parent pursuant to a lawful admission for permanent residence, and; 4) if adopted, the adoption must be "final", under the laws of the foreign country and U.S. immigration.Note 2
As a result, if they immigrate on an IR3 classified visa, most foreign born children by adoption will automatically become U.S. citizens when they enter the U.S. If they immigrated or will immigrate on an IR4 visa, they will not become U.S. citizens when they enter the U.S. but will become U.S. citizens when the foreign adoption is finalized or readopted, as applicable, in a U.S. State court.2a, 2b, 2cNote 2a, 2b, 2c
It depends. Basically, since January 2004, if your child enters the United States on an IR3 classified visa, your child will receive a Certificate of Citizenship (COC), a one page official document that proves that your child is a USC. However if your child entered the United States before January 2004, or entered or will enter on an IR4 visa, you will not receive a COC and will have to apply for one from the USCIS when the qualifications are met.
No. You are not required to get an official document that proves your child's citizenship. Once the qualifications are met, your child becomes a USC without any further action on your part, and is entitled to all the benefits of being a USC whether or not you ever obtain a document that proves U.S. citizenship.
Yes. Both documents are acceptable proof of U.S. citizenship.Note 3c However see comment 5 below.
Yes and I strongly recommend it! Even if your child has the status of USC under U.S. law and you or your child would ultimately prevail on this issue if it ever were challenged, you or your child may still be faced with the problem of having to convince others that your child is a USC because he or she was not born in the U.S. Having clear and tangible documentary evidence immediately on hand will save you and/or your child from having to produce numerous documents, and probably having to re-explain the CCA, every time it is necessary to prove that he or she is a USC. In addition, despite the CCA, Social Security Offices require proof of citizenship through a COC or U.S. Passport, before they will classify your child as a USC in their system.3bNote 3b Finally, once you have obtained the proof of citizenship, there will be no doubt that your child has met all of the requirements under the CCA and indeed is a USC.
You can prove U.S. citizenship through either a COC or a U.S. Passport. However, I recommend that you get both. Note 3a The COC is advantageous because it is universally recognized, only one-page long and does not need to be renewed. It is very similar to the one page Certificate of Naturalization that is used by a naturalized USC to prove U.S. citizenship. Unfortunately the USCIS response time for issuing a COC after the application has been submitted has been very slow. The Passport can usually be obtained fairly quickly and will be necessary if you travel outside of the United States with your child. (See comments below.) If at all possible, start the process for both. You can then wait for the USCIS to provide the COC.
Only the birth certificate of an individual born in the U.S. can serve as proof of U.S. citizenship for that individual.
The form N-600 Application. It can be downloaded from the USCIS website. Note 4
The Form N-600K is the form to be used to apply for a COC if the child and his or her family do not reside in the United States. See Note 2.
Currently the fee for the N-600 (and the N-600K) Application on behalf of an adopted child is $215. However, effective July 30, 2007, the fee for the N-600 (and the N-600K) Application on behalf of an adopted child is being increased to $420. Note 5
- The filing fee and the required two photographs.
- If you have finalized the adoption or readopted your child in a
U.S. state court, include a copy of the adoption decree.
- If you have changed your child's name as part of the US state
adoption, state the new name in Part 1 A of the Application, indicate
that the name was changed pursuant to the adoption decree, attach a
copy of the adoption decree and request that the COC be issued in the
new name.
-If you have a U.S. Passport for your child, make a copy of the
first two pages.
- I recommend that you also submit copies of the following
supporting documents: Your child's foreign birth certificate and
foreign adoption decree, with English translations, your child's
foreign passport with the I-551 visa stamp, your child's U.S. State
issued birth certificate, your driver's license showing residence in
the U.S., birth certificate, and your spouse's birth certificate if
you are married, proof of at least one parent's U.S. citizenship (for
example, birth certificate showing birth in the U.S., Certificate of
Naturalization, etc.), marriage certificate, if married, and as
applicable, proof of termination of any previous marriages. (Most of
the USCIS publications state that you do not need to submit documents
that it already has in its file. However, some offices still require
them. Since you have them on hand it is probably better to just copy
and send it all.)
- The fee should be paid by certified check or money order and
made payable to the U.S. Citizenship and Immigration Services.
You should mail the submission to the USCIS District Office with jurisdiction over your place of residenceNote 6 using a delivery service that can be tracked, for example, Federal Express.
- A certified copy of the foreign adoption decree and any U.S.
state-issued adoption decree.
- Evidence that your child entered the US as a lawful permanent
resident. This can be shown through producing either the child's
permanent resident alien card or the child's foreign passport with the
I-551 U.S. visa stamp.
- Proof of the requesting parent's identification and residence,
for example, a driver's license.
- Evidence of U.S. citizenship of at least one of the parents.
- You should also bring a certified copy of your child's birth
certificate to confirm your child's age.
- Your child must appear in person when you are applying for the
passport. Note 8
This is a good question. According to the Department of State (DOS) publication regarding the CCA, you should not have to obtain a COC before you can obtain a U.S. Passport. (See Note 7) However the DOS website regarding documents that you need to obtain a U.S. Passport indicates otherwise. Note 9 Because of this conflict, some offices are requiring a COC before they accept the U.S. Passport application. If unsuccessful, you should try another designated office that accepts U.S. Passport applications. Some are more reasonable than others.
Yes. Once your child becomes a USC he or she is required to enter and leave the U.S. on a U.S. Passport. Note 10
Please note that these are general comments and are not intended to be comprehensive. They are not legal advice nor should they be relied upon as legal advice. They are based on various publications and information that were found on the USCIS and DOS websites and related sources, and my experience.
If you have any questions about the CCA, other issues involving international adoption, or general immigration questions, feel free to contact me. I am an attorney with a private practice in the areas of immigration/citizenship law and adoption of foreign-born children adopted abroad or domestically, as well as the mother of a 13 year-old child adopted from China in 1994. I provide legal services and consultations to parents and agencies throughout the United States and abroad to address U.S. immigration problems, as well as handle general immigration matters. I also handle domestic adoptions, adoption finalizations and readoptions in the Commonwealth of Pennsylvania.
LAW OFFICE OF C.J. LYFORD
Telephone 215-836-4628
E-mail lyfordesq@comcast.net
Fax 215-836-4629
* Member of the American Immigration Lawyers
Association
Note 1 Public Law No. 106-395. See also Immigration and Nationality Act ("INA") sections 320, 322 and 341.
Note 2 Not all foreign-born adopted children have benefited or will benefit from the "automatic" provisions of the Act. As an example, one of the requirements is that the child be permanently residing in the U.S. If you and your child are not permanently residing in the U.S., your child is still entitled to become a USC however you will need to apply for citizenship, using the Form N-600K. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d9d3445646e1e010VgnVCM1000000ecd190aRCRD&vgnextchannel=063807b03d92b010VgnVCM10000045f3d6a1RCRD See also INA section 322.
Note 2a If the adoption abroad was
final under the laws of the foreign country and U.S. immigration, your
child will be issued an IR3 classified visa ("Immediate Relative --
Orphan Adopted Abroad by USC.") to immigrate to the U.S., assuming
that the other qualifications are met. See prior note.
However, if the adoption was not completed abroad or considered "final",
either by the country abroad, or U.S. immigration, the child will enter
the U.S. on an "IR4" classification visa. ("Immediate
Relative - Orphan to be Adopted in the U.S. by a USC."). If so,
additional action will have to be taken for the child to become a USC. An
IR4 visa is issued in two types of situations.
The first IR4 situation arises because there has been no adoption
proceeding abroad, when the adoption is not completed abroad and/or the
adoption is not considered final by the foreign country. This is often
seen in adoptions of children from India or Korea in which only a
guardianship or custodial relationship is established between the child
and parent(s) or the child and the agency. In this situation, an adoption
must take place in the U.S. according to the law of the applicable U.S.
state court where the parents, or sole parent, as applicable, reside, or
where the court otherwise has jurisdiction. This is frequently referred to
as an adoption "finalization". Once the adoption is "finalized",
the child automatically becomes a USC as of that date.
The second IR4 situation is when both parents, or the sole parent, as
applicable, did not see the child before or during the adoption abroad,
even if the foreign adoption was considered final under the law of the
foreign country where the adoption took place. This is sometimes referred
to as a proxy adoption An IR4 visa is issued in this situation because the
Immigration and Nationality Act (INA) has been interpreted as requiring
that both parents, or the sole parent, as applicable, see the child before
or during the adoption abroad in order for the adoption to be "final"
under the INA and the child eligible for U.S. citizenship In order for the
adoption to be final for purposes of citizenship, the INS has generally
required a readoption of the child in a U.S. state court. The readoption
requirement may be waived if evidence is provided to the USCIS that the
applicable state "recognizes" the foreign adoption as full and
final under that state's adoption laws. Most professionals still recommend
a readoption in this IR4 situation rather than risk uncertainty regarding
a child's citizenship, and I agree. However, should you decide not to
readopt because your state recognizes foreign adoptions as valid under its
law, do not assume that your child is a citizen. Make sure that you take
the next step and obtain a COC to confirm that the USCIS has accepted the
proof of state recognition that you have submitted and has waived the
readoption requirement. Otherwise, and not until then, will you be certain
that your child has acquired U.S. citizenship.
Note 2b You can determine what classification of visa your child was issued by looking at the I-551 visa stamp in your child's foreign country passport to see whether the designation is "IR3" or "IR4".
Note 2c The term "readoption" generally refers to a process by which a U.S. state court reviews the adoption abroad along with additional information as it deems necessary, and issues a new adoption decree, independent of the foreign decree, stating that the child has been adopted in conformity with the adoption law of the applicable state. There are a number of advantages to readoption and many families choose to readopt their child even if not required. It is generally recommended by most adoption lawyers and other professionals. Readoption is discussed more specifically in comments that I have prepared about readoption: "READOPTION" - WHAT IS IT? DO YOU NEED TO DO IT? SHOULD YOU DO IT? WHAT DOES IT INVOLVE? -- SOME THINGS TO CONSIDER REGARDING READOPTION." This is available upon request.
Note 3a I have received occasional reports from families that a U.S Passport was not accepted abroad by foreign country consulates in various situations. While this should not occur, it further supports the recommendation that both documents should be obtained, and carried with you abroad. By the way, it is ok to make a copy of a COC to carry with you. Keep the original in a safe deposit box.
Note 3b After you get the Certificate or the Passport, go back to the Social Security Office with the proof of citizenship to be sure that the Social Security records accurately reflect that your child is a USC.
Note 3c 22 USC section 2705.
Note 4 You can download the Form N-600 and its instructions at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a936cac09aa5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD
Note 5 You can read the Federal Register Notice at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-10371.htm
Note 6 You can determine what office has jurisdiction over your residence at: https://egov.uscis.gov/crisgwi/go?action=offices
Note 7 DOS website publications regarding the CCA under "Intercountry Adoption" are at: http://travel.state.gov/family/adoption/info/info_457.html and http://travel.state.gov/family/adoption/info/info_448.html
Note 8 Be aware that when applying for a passport for a minor under the age of 14 that you must comply with the parent consent provisions required under Public Law 106-113. See website in note below.
Note 9 The DOS website regarding U.S. Passports at http://www.travel.state.gov/passport/get/minors/minors_834.html is ambiguous. In one part it only indicates that you must "establish proof of citizenship". However, in a later part it appears to say that a certain document proving U.S. citizenship, such as a COC, must be provided. In addition it also contradicts the website publications at note 7 above, that do not indicate that a COC is required.
Note 10 See INA sec. 215 (b).
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