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.) 

Adopted children may self-petition for green card without living with abusive parents for 2 years

A recent USCIS policy memo implements an exception to the two-year custody and two-year residency requirement for abused adopted children.  This policy memo, dated July 14, 2014, provides guidance to USCIS officers in adjudicating Form I-360, filed by a self-petitioning adopted child for a green card, when the adopted child has been battered or abused.


Normal Requirements for Adopted Children Petition
Under normal procedure, an adopted child must meet certain legal requirements before he or she may apply for a U.S. green card based on the adoptive parent's petition.  The Immigration and Nationality Act (INA) requires that the child's adoption must have been completed before the adopted child’s 16th (or 18th, if the child's sibling had been adopted by the same adoptive parent prior to the age of 16)  birthday.  Further, the adoptive parent must also have had legal custody of the adopted child for at least two years, and must have resided with the adopted child for at least two years. There are some exceptions to these requirements. For example, orphan adoptions or Hague Convention adoptions are governed by different sets of rules.

Problems under the Regular Requirements
Under the regular legal requirements, adopted children were required to prove that they have had two years of legal custody and two years of residence with the U.S. citizen or lawful permanent resident adoptive parent.  These requirements created problems for adopted children who were abused by their parents.  These children were not able to apply for a green card until they had lived with their abusive parents for two years.  If they chose to escape or move out of the abusive home, they would become ineligible for a green card for failing to meet the two-year legal custody and two-year residency requirements.

Violence Against Women Act 2005 Amendments
In 1994, the Violence Against Women Act (VAWA) was signed into law, which allows certain abused adopted children of U.S. citizens or lawful permanent residents to self-petition for immigrant visas.  However, many adopted children were not able to self-petition because they failed to meet the two-year legal custody and two-year residency requirements.

In 2005, VAWA was amended to remove these two requirements by amending the definition of
an adopted child under INA for a child if the child has been battered or subjected to extreme cruelty by the adoptive parent or by household family members of the adoptive parent.  In effect, the VAWA 2005 amendments allow abused adopted children to leave their abusive home without jeopardizing their eligibility to file a self-petition for green card.

New Guidance under Policy Memo
The new policy memo provides guidance on the adjudication of a VAWA-based Form I-360.  The policy memo basically adopted the VAWA 2005 amendments in the adjudication process.  Under the new policy, an abused adopted child applying for a self-petition only needs to prove that he or she shared a residence with the abuse parents for some period of time.  If the child has been abused
by the adoptive parent or a household family member,  the two-year custody and two-year residence requirements no longer applies.  To apply, the adopted child must be at least 14 years old and a person of good moral character.

Further, an abused adopted child may file the I-360 petition outside of the U.S. if  the abuser is an employee of the U.S. government or a member of the uniformed services, or if the self-petitioning child was subjected to battery or extreme cruelty in the United States.

Late filing is also allowed under the new policy.  Specifically, if the abuse was "one central reason" for the delay in filing, the "child" may continue to be eligible to file a self-petition until the age of 25.

Claims of abuse and extreme cruelty are scrutinized carefully by the adjudicators.  Substantial evidence such as police reports, sworn statements, medical documentation, etc., is required to prove that a child was battered or subjected to extreme cruelty.  

USCIS new policy on adoption-based I-130 petition

The Hague Adoption Convention, effective in the United States on April 1, 2008, is an international convention dealing with international adoption. It's primary purposes are to protect children's basic rights and to guard them against abuses and exploitation such as child laundering and trafficking.  The Hague Adoption Convention applies when a child who is habitually residing in one Convention country is adopted by someone habitually residing in another Convention country.

To prevent circumvention of the Hague Adoption Convention protections, a child who is a citizen of a Hague Adoption Convention country is deemed to be habitually residing in that country under the Department of Homeland Security regulation, even if the child is actually residing in the United States. Under this policy, the child is not eligible to adjust status in the United States to become a permanent resident.

A USCIS memo dated October 31, 2008 provides a solution to this problem.  It authorizes USCIS officers to approve an I-130 visa petition (which is required before the child may adjust status) filed on behalf of such a child if, prior to the adoption, the prospective adoptive parents obtain a written statement from the Central Authority of the child's country of origin stating that: a) It is aware of the child’s presence in the United States; b) It is aware of the proposed adoption; and c) It has determined that the child is not habitually residing in the country of origin.

Additionally, the adoption order that is submitted with the Form I-130 must expressly state that such written statement from the Central Authority was filed with the court finalizing the adoption. An amended order can be obtained if such Central Authority statement is not obtained until after the adoption was finalized.

Cognizant of fact that some countries of origin do not issue statements described above, the USCIS issued another policy memo on December 23, 2013 which provides further assistance to the adoption-based I-130 petitioners.  Specifically, the memo states that if a petitioner has attempted to obtain the statement of habitual residence from the country of origin for at least 6 months with no response, and the child was not paroled into the United States, USCIS will approve a Form I-130 if the following three criteria are met:

1) At the time the child entered the United States, the purpose of the entry was for reasons other than adoption (intent criteria);

2) Prior to the U.S. domestic adoption, the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States, (actual residence criteria); and

3) Any adoption decree issued after February 3, 2014, confirms that the country of origin Central Authority was notified of the adoption proceeding in a manner satisfactory to the court and that the Central Authority did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (notice criteria).

It should be noted that approval of the I-130 visa petition is only a prerequisite for adjustment.  The child must also meet the other requirements for adjustment before it may become a lawful resident of the United States. Under the Hague Adoption Convention, international adoption has become an extremely complicated process.  USCIS memos such as this one provide much needed guidance to the U.S. petitioners who plan to adopt internationally.

New Guidance on Adoption for Immigration Petitions

The U.S. Citizenship and Immigration Services (USCIS) has issued new guidance on the requirements of adoption for immigration purposes under the Immigration and Nationality Act (INA).   Under U.S. immigration law, children may receive benefits based on their relationship to their parents. For instance, a U.S. citizen or lawful resident may petition for his children under the age of 21 for immigration.  Children may also indirectly derive benefits through their parents in other situations. For example, when a U.S. citizen's immigrant visa petition filed on behalf of a sibling gets approved, the sibling's minor children may also immigrate with their parent.  Similarly, children may also derive immigration benefits through their parents in other types of applications including political asylum, refugee status and naturalization, if other requirements are met.  The policy is to foster family unity.

Adoption becomes an important issue because adopted children may also receive immigration benefits like naturally born children.  The key is that the underlying adoption must be legally valid.   Generally speaking, the INA authorizes three different ways for an adopted child to be treated as a naturally born child of their parent for immigration purposes pursuant to INA section 101(b)(1).  First, adoption is valid when the adoptive parent(s) have two years of legal custody and joint residence over the child, in addition to other requirements.  The second way is when children are coming to the United States as 

“orphans” from countries that have not ratified the Hague Adoption Convention, if they have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s).  The third situation is when children are coming to the United States who have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s) under the Hague Adoption Convention. 

In a recent policy memorandum issued by the USCIS on November 6, 2012, the government agency provided new guidance on the issue of adoption.  In order for an adoption to be valid for immigration petitions, an adoption must satisfy three important requirements:  "(1) Be valid under the law of the country or place granting the adoption; and (2) Create a legal permanent parent-child relationship between a child and someone who is not already the child’s legal parent; and (3) Terminate the legal parent-child relationship with the prior legal parent(s)."    This memorandum is binding on all USCIS officer for the purposes of adjudicating immigration petitions. 

Since the INA does not define "adoption", the only guidance was provided by the Board of Immigration Appeals (BIA).  BIA has previously held that an "adoption" is valid only if it: "1. Terminates the legal parent-child relationship between the child and any prior parent(s); and 2. Creates a permanent legal parent-child relationship between the child and the adopter. "  The BIA's interpretation of adoption has been adopted by the USCIS.  

The requirements listed in the new guidance applies to every benefit request and application based on an “adopted child” relationship under INA section 101(b)(1)(E), including, but not limited to:  Form I-130;  Form I-730;  Form N-600;  Form N-600K; or "a claim to eligibility for an immigrant or nonimmigrant visa or classification as a derivative under INA section 203(d)." 

The memorandum clarifies that a child “coming to the United States for adoption” may also qualify as an orphan or as a Hague Convention adoptee under INA.  Hence, even if an adoption does not meet the three requirements listed in the memorandum, the child may still establish that the prospective adoptive parents have legal custody to bring the child to the United States for adoption under INA.

The memorandum also provides other tips in filing an adoption-based petition.  For example, it comments that even if a petitioner is not the birth parent, a child may also qualify as the child of the principal refugee or asylee.  In other situations, a step parent-child relationship may be a more preferable way of petitioning for a child whose parent has re-married a U.S. citizen.  For Hague Convention Adoption,  it is also a good idea for the petitioner to obtain the written statement from the "Central Authority" of the other Hague Adoption Convention country before applying for an adoption order in the United States. Even if a written statement is obtained afterwards, it can still be used to resolve any jurisdictional issues of the adoption court. 

The new guidance is implemented through amendments of the related sections of the Adjudicator's Field Manual (AFM). The new guidance applies to all both domestic adoptions and international adoptions of non-U.S. citizen children.  Similarly, all adoption-related immigration benefits are also covered.  We welcome the new guidance as it provides important guidelines for both prospective adoptive parents and USCIS officers in handling adoption situations.