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- Why Your Foreign-Born Adopted Child Should Have Proof of U.S. Citizenship, How to Get This Proof and Related Issues
|Why Your Foreign-Born Adopted Child Should Have Proof of U.S. Citizenship, How to Get This Proof and Related Issues|
|Written by C.J. Lyford, Esq.|
|Friday, 01 October 2010 00:00|
As a result of the Child Citizenship Act of 2000 (CCA), many foreign born children by adoption who reside in the U.S. have or will become U.S. citizens under the CCA either when they enter the U.S. or when they are readopted or their adoption finalized in the U.S.1, 1b
1. WHO IS ELIGIBLE FOR CITIZENSHIP UNDER THE CCA?
The Child Citizenship Act of 2000 (CCA) 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 when he or she enters the U.S.; or was under the age of 18 at the time of the effective date of the CCA (that is, February 27, 2001)2, 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 residence1a, and; 4) if adopted, the adoption must be "final", under the laws of the foreign country and U.S. immigration.
2. WHAT DO THE VISA CLASSIFICATIONS IR3 AND IR4 MEAN?2a
Basically, 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 immigration visa ("Immediate Relative -- Orphan Adopted Abroad by USC.") to immigrate to the U.S.
However, if the adoption was not completed abroad or considered "final", either by the country abroad, or by U.S. immigration (because the child was not visited by the sole or both parents before or during the adoption abroad), the child will enter the U.S. on an "IR4" classified visa.2b ("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.
If they otherwise qualify under the CCA, most children who immigrate on an "IR3" visa automatically become USC's when they enter the U.S. (but see notes 1a and 2). If they immigrated or will immigrate on an "IR4" visa, they will not become U.S. citizens until the adoption is finalized or readopted, as applicable, in a U.S. State court.
3. WHAT IF YOUR CHILD IS ADOPTED UNDER THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTIONS (HAGUE CONVENTION)?
As of April 1, 2008, the U.S. Intercountry Adoption Act of 2000 (IAA) and regulations issued as a result of the Hague Convention govern adoptions between the U.S. and other "Convention Countries" such as China, Guatemala, India, Mexico, Philippines and Thailand.3, 3a Amongst many things, adoptions under the Hague Convention will involve additional U.S. visa classifications, the "IH3", for adoptions that are final abroad and "IH4" for adoptions that will be completed in the U.S. Those that enter on an "IH4" visa, will not be USC's until the adoption is finalized in the U.S.
Of special note is that the requirement that the sole or both parents visit the child before or during the adoption abroad has been eliminated under the Hague Convention. Therefore, as long as the adoption is final abroad, an "IH3" visa should be issued.
4. Will your child automatically receive any official documentation of his or HER U.S. citizenship?
It depends. Basically, since January 2004, children who enter the United States on an "IR3", or now on an "IH3" visa as a result of the Hague Convention, and who otherwise qualify under the CCA, will receive a Certificate of Citizenship (COC) from the CIS in the mail.3e However if your child entered the United States before January 2004, or entered or will enter on an "IR4" or an "IH4" visa, he or she will not receive a COC and will have to apply for one from the USCIS when the qualifications are met.
5. Do you have to obtain A COC or Usp TO PROVE U.S. citizenship for your child?
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.
6. SHOULD YOU obtain documentary proof of your child's U.S. citizenship?
Yes and I strongly recommend it. Here are some reasons why you should do this.
7. Why can't YOU use your child's U.S. State-issued birth certificate To prove u.s. citizenship?
Your child was not born in the U.S. Only the birth certificate of an individual born in the U.S. or in certain territories can serve as proof of U.S. citizenship for that individual.
8. How do you get proof that your child is a citizen?
You have two choices:
9. Which type of proof of citizenship should you obtain?
Under U.S. law, U.S. citizenship can be proven through a COC or a USP.4a However, I recommend that you get both. The COC is advantageous because it is universally recognized, only one-page long, indicates the date of citizenship 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 comment below.) If at all possible, start the process for both. You can then wait for the CIS to provide the COC.
10. How do you obtain a COC?
You can obtain the COC by submitting the Form N-600 Application to the USCIS District Office with jurisdiction over your residence in the U.S. Information and the form can be obtained through the USCIS website.
11. What is the cost for a COC?
The fee for the N-600 (and the N-600K) Application on behalf of an adopted child is $420. ($460 is the fee for a foreign born biological child.) However, note that on November 23, 2010, the fee will increase to $520. ($600 for a biological child.)
12. What documents do you have to submit with the N-600 Application?
13. What is needed to obtain a U.S. Passport?
14. Is a COC required before you can obtain a USP for your child?
You should not have to obtain a COC before you can obtain a USP and the current information sheet from the Department of State website regarding the CCA is in accord. However the Department of State website regarding what documents are required to obtain a USP indicates otherwise. Because of this conflict, some offices are requiring a COC before they accept the USP application. If unsuccessful, you should try another designated office that accepts Passport applications. Some are more knowledgeable than others.
15. does your child need a USP to travel outside of the United States ONCE HE OR SHE BECOMES A usC?
Yes. Once your child becomes a USC he or she should enter and leave the U.S. on a USP.
16. WHAT IF YOUR CHILD MET THE QUALIFICATIONS OF THE CCA BUT NEVER GOT THE COC? CAN HE OR SHE STILL GET A COC AFTER HE OR SHE BECOMES AN ADULT?
Yes. Once your child becomes a USC under the CCA, your child remains a USC after becoming an adult. There is no time limit on when he or she can apply for the COC and the N-400 naturalization process is not applicable. (See note 2).
17. FINALLY, Make sure that your child understands that he or she is a USC and what this means.
You should tell your child that while he or she was born outside of the U.S., he or she is a USC under U.S. law. Explain what it means to be a citizen. I am surprised at the number of teenage adoptees who either do not know or understand this. You should also mention that sometimes U.S. citizenship may be questioned. Show the COC and/or USP to your child so that he or she knows that you have proof of citizenship should the need arise. Do not forget to tell your child or a responsible adult where the documents are kept.
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 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 16 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 (NOID's, I-600 denials, etc.), as well as handle general immigration matters. I also handle domestic adoptions in Pennsylvania including independent, relative, stepparent and second parent adoptions, adoption finalizations and readoptions.
By C.J. Lyford, Esq.*
Attorney At Law
632 Germantown Ave.
Lafayette Hill, PA 19444
Practicing in the areas of Immigration/Citizenship/Visa Law
*Member of the American Immigration Lawyers Association. 100110 cjl
This material may be freely reproduced and distributed. However, when doing so, please credit C.J. Lyford. Thank you.
1 Public Law No. 106-395. See also Immigration and Nationality Act ("INA") sections 320, 322 and 341.
1b The CCA will also apply to give automatic citizenship to children who are adopted in the U.S. and adjust status to lawful permanent resident, after two years of legal custody and residency, assuming the other qualifications are met (under 18 when the I-485 is approved.) See Comment number 1.
2 Unfortunately, the CCA does not apply if the child was 18 or older on February 21, 2001 or if the child entered or will enter the U.S. after turning 18 years of age. In this situation, the child will have to acquire U.S. citizenship through the N-400 naturalization process. Until your child becomes a USC, he or she may be subject to adverse CIS action if involved in criminal or certain other activities. An immigration attorney should also be contacted before the application for naturalization is filed to evaluate any potential risks from this action.
1a 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. See also INA section 322. Citizenship will not be acquired until the date that the COC application is granted.
2a 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.
2b 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. Adoptions from Thailand are also not usually final in Thailand. 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 In order for the adoption to be final for purposes of citizenship, the CIS 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.
3 The Hague convention will cover adoptions after April 1, 2008, unless it falls within the transition guidelines, for example, the I-600A was filed before April 1, 2008.
Please refer to the CIS and Department of State websites re the Hague Convention. (See, for example, the CIS website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=beb46faedb8f8110VgnVCM1000004718190aRCRD&vgnextchannel=f3beaca797e63110VgnVCM1000004718190aRCRD; and DOS website at: http://adoption.state.gov/about/how/hague.html, http://travel.state.gov/visa/immigrants/types/types_1312.html
3a Examples of countries that are not Hague Countries are Ethiopia, Haiti, Kazakhstan, South Korea, Russia, Taiwan and Ukraine. See the above Department of State website for a complete list.
3e The COC will be issued in the name on your child's visa. If your child's name is changed through readoption, etc., a replacement COC can be obtained through the N-565 form at the CIS website. The cost is $360.
4 After you get the COC or USP 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.
4a 22 U.S.C.A. sec. 2705. However, even if under U.S. law, both documents are proof of U.S. citizenship, this does not mean that either has to or will be accepted as such, particularly abroad. For example, I have received occasional reports from families that a U.S. Passport was not accepted abroad by foreign country consulates in various situations because of the potential of document fraud. While this should not occur, it further supports the recommendation that both documents be obtained and carried abroad.
|Last Updated on Monday, 18 October 2010 06:40|