Children of U.S. Citizens born abroad: Are they Americans?

 

As of 2019, the U.S. State Department estimated that 9 million Americans live in overseas countries.  Many of them work for the U.S. government or companies; some others may simply choose to live in another country for personal reasons.  International marriages have also become extremely common nowadays.  One consequence of these global movements is that many children are born in overseas countries to American citizen parent(s).  What is the nationality of these children? And how can they prove it? 

Birth Certificates / CRBA

Typically, a child who is born in another country may obtain a birth certificate issued by the local authorities, showing the time, date, and place of their birth.  The birth certificate may also contain information about the child's parents and their nationality.  However, a foreign birth certificate does not prove American citizenship.  The U.S. State Department recommends that children of U.S. citizens born abroad should apply for a Consular Report of Birth Abroad of a Citizen of the USA (CRBA).  The CRBA works like an American birth certificate, proving that the child is a U.S. citizen at birth.   The application process for a CRBA is not trivial and may vary in different Consulate offices.  But generally, the child must apply before the age 18, and provide proof that he/she was born to at least one American citizen parent abroad.  Further, the U.S. citizen parent (or sometimes the grandparent) must prove that he/she was residing in the United States for at least five years, at least two of which were after the parent reached the age of 14.  The residence requirements are different if both parents are U.S. citizens or if the child was born out of wedlock. Original documents must be provided, and an interview is mandatory.  If only one parent can attend the interview, additional documentation will be required, especially if the U.S. citizen father cannot attend. 

Citizenship Act of 2000

For those children who are not eligible for a CRBA, they may be eligible for U.S. citizenship under the provisions of the Citizenship Act of 2000.  Under this law, children may acquire citizenship if they meet certain legal requirements before reaching the age of 18.  First, they must have at least one parent who is a U.S. citizen by birth or through the naturalization process.  Second, they must be admitted legally to the United States as an immigrant for lawful permanent residence. Third, after their admission, they must reside in the U.S. under the legal and physical custody of a U.S. citizen parent.  The last requirement is a both a legal requirement and a factual determination.  It is important to note that if the child was legally adopted, the adoption process must be legally complete and fully recognized by the State where the child is living. 

Expatriates Residing Abroad

While the Citizenship Act of 2000 makes it easier for foreign-born children of U.S. citizens to apply for American citizenship, it requires that the child be admitted as a legal resident and be residing with a U.S. citizen parent.  There are situations in which the family regularly lives in another country for work or other reasons.  In these cases, it is not feasible for the child to meet the residence requirement.  Fortunately, Section 322 of the Immigration Act allows such children to apply for a Certificate of Citizenship from abroad by filing the N-600K application, if the citizen parent meets certain U.S. residence requirements.  Further, the child must still physically present in the United States temporarily to attend an interview in person to complete the application process.

U.S. Passport vs. U.S. Certificate of Citizenship

Regardless of how a child may have acquired U.S. citizenship, it is very important to have possession of a document to prove his/her citizenship.  Applying for a U.S. passport is probably the easiest way to prove one's citizenship, and a passport may also be used as a travel document.  However, a passport is generally not a permanent document and must be renewed periodically.  To secure a permanent document, one should apply for a Certificate of Citizenship with the U.S. Citizenship and Immigration Services.  It is a direct and permanent proof of one's American citizenship. It is registered with the Department of Homeland Security permanently. Further, some government agencies or benefit applications may require the Certificate of Citizenship as proof of one's U.S. citizenship. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Old Certificate of Citizenship Form Replaced

Individuals who are born overseas but derived US citizenship through their parents may apply for a Certificate of Citizenship as proof of their citizenship.  USCIS announced that, as of 04/10/2020, it has stopped issuing the old version of the Certificate of Citizenship, Form N-560AB.  Instead, USCIS issues Form N-560A as proof of one's citizenship. 

USCIS May Cancel Certificate of Citizenship Without Federal Court Order

                   

If you acquired citizenship indirectly through your parent's naturalization, the Department of Homeland Security has authority to cancel your Certificate of Citizenship, according to a recent Board of Immigration Appeals (BIA) decision. 

A lawful resident of the United States may apply for citizenship through the legal process of naturalization, if she is over the age of 18 and meets several legal requirements such as good moral character and knowledge of American civics and history.  Citizenship through naturalization confers the person with certain rights such as the ability to vote and to apply for a U.S. passport.  A naturalized person's citizenship status can normally be taken away only through a formal legal process called "denaturalization" in the Federal court, where she has the right to defend herself by presenting evidence and also conducting cross-examination.

The Immigration and Nationality Act (the INA) also provides that minor children under 18 may acquire citizenship derivatively when their parents become naturalized citizens.  While naturalized persons will be issued a Certificate of Naturalization, a child who acquired citizenship derivatively may only apply for a document called Certificate of Citizenship.  The Certificate of Citizenship generally can be used as proof of a person's U.S. citizenship. For example, it can be used to apply for a U.S. passport or to apply for a Federal job.

In Matter of Bright Idada Falodun, a BIA decision decided on June 2, 2017 (Interim Decision #3895), the respondent in removal proceedings was issued a Certificate of Citizenship through the naturalization of his adoptive father.  However, USCIS subsequently obtained evidence to show that he obtained his citizenship through fraud. For example, there is evidence that his "adoptive father" is actually his brother.  The former Immigration and Naturalization Services (INS) cancelled his Certificate of Citizenship.   He was subsequently placed in removal proceedings and an Immigration Judge found him deportable from the United States.

Mr. Falodun appealed the Immigration Judge's decision and argued that he was entitled to more legal protection by virtue of his possession of a Certificate of Citizenship.  He argued that by issuing him the certificate, the U.S. government conferred him certain rights and privileges.  Specifically, he argued that his citizenship can only be  stripped away in Federal court proceedings rather than through administrative proceedings conducted by the INS or USCIS.

The BIA disagreed and noted that Mr. Falodun's birth certificate shows that he was born outside of the United States. As such, he has the burden of proof that he is not entitled to deportation in removal proceedings.  Although he has a Certificate of Citizenship, Mr. Falodun did not obtain United States citizenship through naturalization. Instead, he was issued his Certificate of Citizenship under section 341 of the INA, based on his claim of derivative citizenship through the naturalization of his "adoptive father", who in fact was found to be his brother. The BIA noted that a Certificate of Citizenship only serves as evidence that a person obtained his citizenship derivatively through his parents; it does not confer the same rights and privileges that a Citizenship of Naturalization confer.  Consequently, Mr. Falodun's appeal was dismissed.

This is a case of first impression, and the BIA decision may  not be the final word on this important issue.  However, holders of Certificate of Citizenship should understand that, under the Falodun decision, their citizenship can be cancelled by the government administratively without a Federal court hearing.