Copyright © 2010, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s Immigration Practice Pointers, (2010–11 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org.
A CHILD’S CLAIM TO CITIZENSHIP:
BIRTH, SURROGACY, AND ADOPTION
by Karen S. Law, Irene Steffas & Derek Strain *
Children born to citizens of the United States or to persons who are later naturalized have a claim to citi1
zenship by virtue of the principal of jus sanguinis, law of the bloodline. Jus sanguinis is a Roman and civil
law principle by which a child’s citizenship is determined by the citizenship of his or her parents. When a
child is linked to his or her parents by blood, adoption, or surrogacy, that child has a claim to citizenship. The
claim to citizenship is neither through common law or the Constitution, but instead by specific statutes. The
requirements of these statutes vary. Hence, it is imperative to examine the statute in existence at the time of
the child’s birth or the date of fulfilling requirements to become a citizen by operation of law.
2
The Child Citizenship Act of 2000 (CCA) made many changes concerning the acquisition and deriva3
tion of citizenship for children. One of the most significant developments is that upon the fulfillment of criteria, a child becomes a citizen by operation of law. The scope of the statue encompasses children who acquire citizenship at birth and children who derive citizenship after birth through naturalization of a U.S. citizen parent, legitimation by a U.S. citizen parent, surrogacy, or adoption.
ACQUISITION OF CITIZENSHIP AT THE TIME OF BIRTH
When a child is born outside the United States, his or her parents may report the birth to the U.S. consu4
late, and the consul will issue a Consular Report of Birth Abroad of a Citizen of The United States. With this
document, the consulate may issue a passport.
*
Karen Stoutamyer Law, of the Law Firm of Karen S. Law, PLC, practices law in Virginia. Her practice is limited to adoption and immigration law for adopted children. She graduated from the University of Pennsylvania School of Law in 1985. She
is a fellow of the American Academy of Adoption Attorneys, and a member of AILA and the Virginia Women Attorneys Association. Ms. Law frequently speaks on adoption and immigration at local and national conferences. She assists clients with I130 filings, orphan visas, Hague visa applications, relative adoptions and citizenship filings.
Irene Steffas is an Approved Person for incoming and outgoing convention cases under the Intercountry Adoption Act and
The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. In June 2009, the State
Department’s Bureau of International Information Programs sent Ms. Steffas to Kyrgyzstan as a goodwill ambassador for international adoptions. Her practice is limited to adoption, surrogacy and immigration with an emphasis on intercountry adoption.
Derek Strain has practiced immigration and nationality law since 1997 and represents clients in all areas including naturalization, family- and employment-based immigration, adjustment of status, consular processing, nonimmigrant visas, and removal
defense. Mr. Strain has been an active member of AILA since 1997 and is a current member of the Chicago chapter executive
board. He has been with Minsky, McCormick & Hallagan, PC, since 2000 and has been a partner in the firm since 2007. Mr.
Strain is a former Peace Corps volunteer (Guatemala) and is fluent in Spanish.
1
Citizenship through the principle of jus soli, or the law of the soil, is another means for citizenship. However, this article only
focuses on the principle of jus sanguinis, or the law of the bloodline.
2
Pub. L. No. 106-395, 114 Stat. 1631.
3
Prior to February 27, 2001, the date that the CCA went into effect, the legal term for acquiring citizenship at birth was acquisition, and the legal term derivation was used to describe citizenship acquired after birth. The relevant statutory provisions
dealing with acquisition are Immigration and Nationality Act (INA) §§301, 303, 309, and 324. Derivation statutes are INA
§§320 and 321 in effect prior to Feb 27, 2001. The CCA amended INA §320 and removed INA §321. Although the CCA uses
the term “acquires,” it is sufficiently similar to sections 320 and 321 in effect before February 27, 2001, to be considered a
derivation statute. The revised INA §320 became the only method for children in the United States under the age of 18 to acquire citizenship. USCIS, Adjudicator’s Field Manual 71.1(c), (d).
4
22 CFR §50.7.
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Both parents are U.S. citizens (USCs): If both of the child’s parents are citizens and one parent had a resi5
dence in the United States prior to the birth of the child, the child has a valid claim to citizenship.
One parent is a USC and second parent is a U.S. noncitizen national: A child is a USC at birth where the following three conditions exist: (1) one parent is a citizen; (2) the other parent is a U.S. noncitizen national; and
(3) the USC parent was physically present in the U.S. for a continuous period of one year prior to the birth of the
6
child.
7
One parent is a USC and the child was born in an outlying possession of the United States: The child has
a claim to citizenship if it can be demonstrated that the citizen parent was present in the United States for a
8
period of one year prior to the birth of the child.
One parent is a USC and the other parent is a foreign national: In such cases, the USC parent must establish
that he or she resided in the United States or its outlying possessions for a period of five years prior to the birth
of the child. Additionally, two of the five years must have been after age 14. This statute permits time that the
citizen parent spent in the Armed Forces or periods of employment with the U.S. government or with an international organization (as defined in section 1 of the International Organizations Immunities Act 9 ) to be
counted. 10
Practice pointer: Medical facilities and doctors outside the United States have been known to create false
medical records showing that the USC mother delivered the child or that the USC father is the biological father of the child. Therefore, often U.S. consuls request DNA evidence to establish the link between the USC
and the infant. Families who have given false information to U.S. consuls find themselves in an even more
embarrassing and incriminating situation.
Citizenship for foundlings: There are situations in which a child and his or her record of birth become
separated. With the growing number of children in the U.S. foster care system, it is probable that some of
those children will be considered foundlings. Under INA §301(f), a child of unknown parents is conclusively
presumed to be a USC if found in the United States when under five years of age, unless foreign birth is established before the child reaches age 21. Although one might think this statute would provide many children
11
a means to establish citizenship, there was only one successful case adjudicated from 1941 to 2006 that
deemed a foundling a USC.
DERIVATION OF CITIZENSHIP SUBSEQUENT TO THE TIME OF BIRTH
If a child’s parent is naturalized, there is an opportunity for the child to become a citizen by derivation.
The requirements for citizenship as a derivative of a naturalized parent are that the child must be (1) a resident of the United States; (2) a lawful permanent resident (LPR), (3) under the age of 18 at the time of his or
12
her parent’s naturalization; and (4) in the legal custody of the parent being naturalized.
Derivation of citizenship for a child born out of wedlock through his or her mother: After the passage of
the CCA, questions still remained as to the plight of a child born out of wedlock when the child had not been
legitimated. Before the CCA, children born out of wedlock were eligible for citizenship through INA §321,
which the CCA repealed. However, the CCA made no specific provision for children born out of wedlock.
Therefore, legacy Immigration and Naturalization Service requested a legal opinion from the Department of
5
INA §301(c).
INA §301(d). See INA §308 for the narrow category of people who qualify for noncitizen national status.
7
Outlying possessions include territories such as American Samoa, Guam, Northern Mariana Islands, U.S. Virgin Islands, and
Puerto Rico, among others.
8
INA §301(e).
9
22 USC §288.
10
INA §301(g).
6
11
C. Nugent, D. Burnett, “The Foundling Statute,” www.ilw.com/articles/2007,0123-nugent.shtm.
12
INA §320.
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Justice Office of Legal Counsel on this issue. On July 24, 2003, the Office of Legal Counsel stated that “a
child born out of wedlock, who has not been legitimated, may derive citizenship through his or her naturaliz13
ing mother under the CCA.” The requirement that the child’s mother be physically present in the United
States 12 months prior to the child’s birth still remains.
Derivation of citizenship for a child born out of wedlock through his or her father: The most recent law addressing this issue went into effect on November 14, 1986, and applies to children born after that date. The following requirements must be satisfied for a child to obtain derivative citizenship from his or her father: (1) father was a USC at the time of the child’s birth; (2) clear and convincing evidence of the relationship (DNA); (3)
father must have agreed in writing to support the child up to the age of 18; (4) before the child’s 18th birthday
the father either (a) legitimated the child, (b) acknowledged paternity, or (c) was the subject of an adjudication
14
of paternity in accordance with the law of the child’s residence or domicile.
Step-children and children of foreign diplomats: For the purpose of citizenship, the definition of child, at
INA §101(c), is more restrictive than the definition of child used for adjustment of status, at INA §101(b).
Hence, stepchildren are not eligible for the benefit of citizenship either by acquisition or derivation. Citizenship is not given via jus soli to children of foreign diplomats, consul, or certain administrative and technical
staff accredited to the United States, the United Nations, and specific international organizations, when they
are born in the United States or U.S. territories.
SURROGACY ISSUES
According to the Centers for Disease Control, as of 2002 infertility affected about 7.3 million women and
their partners in the United States—about 12 percent of the reproductive age population. 15 Since 1981, assisted reproductive technology (ART) 16 has been used in the United States to help women become pregnant,
most commonly through in vitro fertilization (the transfer of fertilized human eggs into a woman’s uterus).
ART generally includes procedures that involve surgically removing eggs from a woman’s ovaries and combining them with sperm in a laboratory, after which they are either returned to the woman’s body or implanted into another woman. Surrogacy is a term that describes the arrangement whereby a woman agrees to
become pregnant for the purpose of carrying and giving birth to a child for others to raise. A surrogate may be
the child’s genetic mother (the egg provider), or she may be implanted with someone else’s fertilized egg
(gestational surrogacy). 17
Financial and legal considerations have led some U.S. couples to carry out this process abroad. Businesses
have sprung up in various parts of the world to meet the demand, and India has emerged as a leading destination for persons seeking surrogacy arrangements. 18 This first came to widespread attention in the United
States in 2006 when Dr. Nayna Patel of the Akansha Fertility Clinic appeared on the Oprah Winfrey show. 19
The phenomenon is not without controversy. 20
Although medical technology has developed faster than the law, some guidance does exist. The law found
in the Immigration and Nationality Act (INA) that applies in nonsurrogacy cases equally applies in the surro13
USCIS Memorandum, W. Yates, “Eligibility of Children Born out of Wedlock for Derivative Citizenship” (Sept. 26, 2003),
published on AILA InfoNet at Doc. No. 03100241 (posted Oct. 2, 2003). See also INA §309(c).
14
INA §309(a).
15
See Centers for Disease Control and Prevention, National Center for Health Statistics, Fertility, Family Planning, and Reproductive Health of U.S. Women: Data from the 2002 National Survey of Family Growth (Dec. 2005), available at
www.cdc.gov/nchs/data/series/sr_23/sr23_025.pdf.
16
64 Fed. Reg. 39374, 39383 (July 21, 1999) (defining ART).
17
www.newworldencyclopedia.org/entry/Surrogacy.
18
A recent judgment of the Gujarat High Court at Ahmedabad examined the issue of surrogacy and Indian citizenship. Balaz v.
Anand Municipality (Nov. 11, 2009), available at http://blog.indiansurrogacylaw.com/2009/12/judgment-gujarat-high-court.
19
www.oprah.com/world/Wombs-for-Rent.
20
J. Brooks, “Oprah on Renting Wombs in India: ‘It’s Beautiful’” (Oct. 11, 2007), posted at www.biopoliticaltimes.org/article
.php?id=3713.
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gacy context. 21 The relevant sections of the INA include sections 301 and 309. Under section 104(a) of the
INA, the responsibility of administering and enforcing all nationality laws relating to the determination of
nationality of a person not in the United States is given to the secretary of state, and the issue of surrogacy has
been addressed explicitly by the State Department. The Foreign Affairs Manual (FAM) specifically discusses
citizenship in artificial and in vitro insemination cases in 7 FAM 1131.4-2. In addition, 7 FAM 1446.2-2 specifically discusses ART cases in the adjudication of applications for Consular Report of Birth Abroad of a
U.S. Citizen (Form FS-240).
The law regarding transmission of U.S. citizenship generally requires that at least one biological parent be
a USC when the child is born and that the USC parent have resided or been physically present in the United
States for a time required by the law in effect when the child is born. A blood relationship is required for
transmission of citizenship; adoption does not transmit citizenship. 22
In the surrogacy context, the citizenship of the woman who carries and delivers the baby (the gestational
carrier) is not material to the issue of citizenship transmission. 23 The INA requires a legal and literal biological/genetic relationship for citizenship to be transmitted. The child is considered the offspring of the biological parents (the egg and sperm donor, not the gestational carrier), and the appropriate sections of the INA apply. Cases are treated according to the legal marital relationship of the egg and sperm donors. 24 Children born
to married sperm and egg donors are covered generally under INA §301, while children born to unmarried
sperm and egg donors are covered under INA §309. 25
When the Egg and Sperm Donor Are Married, the Case Will Fall Under Section 301
USC Egg + USC Sperm: Where an egg is harvested from a USC wife, fertilized in vitro by her USC husband’s sperm, and transplanted to another woman who gives birth to the child abroad, the case would be adjudicated as the birth in wedlock to two USCs abroad under INA §301(c). The citizenship of the woman who
gives birth to the child would not be relevant. The child is considered to be the genetic issue of the genetic
mother and father—the USC husband and wife. Therefore, the child would be a USC at birth, provided one of
the parents meets the physical presence requirements in INA §301(c), namely that one of the parents has had
a residence in the United States or one of its outlying possessions prior to the birth of the child. 26
A preponderance of the evidence must show the blood relationship with the child and the USC parent, meaning that the evidence of a blood relationship is greater than the evidence to the contrary. 27 The burden of proof
rests on the person claiming citizenship. Documentary evidence of the medical procedures may be submitted. If
the consular officer suspects fraud, or if the procedure took place in a country where officers have doubts about
the reliability of the evidence, the officer may require DNA tests of the parents and the child. 28
USC Egg + Non-USC Sperm: This arises where an egg is harvested from a USC wife, fertilized in vitro by
her foreign national husband’s sperm, and then delivered by the USC wife. The case is treated as a child born
in wedlock to one USC parent and one foreign national parent, under which citizenship could be transmitted
by the USC mother to the child under INA §301(g). 29 This requires that, prior to the birth, the USC had been
21
Acquisition of U.S. citizenship by birth abroad to a USC parent is governed by federal law, and the traditional Roman law
principle of citizenship acquired by descent—jus sanguinis—applies. 7 FAM 1131.1.
22
7 FAM 1131.3, 1131.4-1(a).
23
See 7 FAM 1131.4-2. The local birth certificate may list the gestational carrier as the mother in accordance with local laws.
However, consular officers are instructed to clarify the identity of the genetic parents. 7 FAM 1446.2-2 at c.(4)(c).
24
The State Department has contemplated the issue arising for same-sex couples, and says that INA §309 applies. 7 FAM
1446.2-2 at c.(4)(d).
25
Note this would not apply where a USC wife gives birth to a child abroad after having a noncitizen’s donor egg fertilized
with her foreign national spouse’s sperm and then implanted in her, as only the foreign national spouse would be related genetically to the child. 7 FAM 1446.2-2 at c.(4)(b).
26
7 FAM 1131.4-2(b).
27
7 FAM 1131.4-1(b)(1).
28
7 FAM 1446.2-2 at c.(4)(c).
29
7 FAM 1131.4-2(b).
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physically present in the United States or one of its outlying possessions for a period or periods totaling not
less than five years, at least two of which were after age 14. 30 Note that if the mother lacked sufficient physical presence, citizenship would not be transmitted.
Non-USC Egg + USC Sperm: This arises where an egg is harvested from a married foreign national
mother and fertilized in vitro by her USC husband. The case is treated precisely the same as the immediately
preceding scenario; that is, citizenship could be transmitted by the USC father to the child under INA
§301(g).
When the Egg and Sperm Donor Are Not Married, the Case Falls Under Section 309
USC Egg + USC Sperm or Non-USC Sperm: Regardless of the citizenship status of the sperm donor, scenarios in which an unmarried USC mother conceives a child by having her own egg fertilized fall under INA
§309(c). 31 For example, where an unmarried USC mother conceives a child through in vitro fertilization, the
case would be treated as a birth out of wedlock regardless of the citizenship status of the sperm donor. The
same would apply in the case of a married USC who conceives a child through in vitro fertilization with her
own egg fertilized by anyone who is not her husband. Whether the USC mother is married or not, the fact that
she is not married to the sperm donor is controlling. Under INA §309(c), a child born out of wedlock is held
to have acquired at birth the nationality of the mother, provided the mother held U.S. nationality at the time of
the birth and had previously been physically present in the U.S. or one of its outlying possessions for at least
one continuous year. If the mother did not meet the physical presence requirement, a USC sperm donor could
transmit citizenship to the child through INA §309(a), as discussed below.
Non-USC Egg + USC Sperm: INA §309 adds an additional burden in the scenario where the egg of noncitizen is fertilized by the sperm of a USC and the two individuals are not married. The matter is treated for
citizenship purposes as a child born out of wedlock under INA §309(a), which requires that the blood relationship between the child and the father be established by clear and convincing evidence. This standard generally means that the evidence must produce a firm belief in the truth of the facts asserted that is beyond a
preponderance, but it need not be beyond a reasonable doubt. To prove the blood relationship, additional evidence beyond the child’s birth certificate is required. Certification by appropriate medical authorities of all
facts and circumstances surrounding the entire insemination procedure is required. Supporting documentation
may include hospital records from the facility where the sperm donation was made, an affidavit from the doctor who performed the operation, and possibly blood tests. 32
Under INA §309(a), the father must have had U.S. nationality at the time of the child’s birth and agree in
writing to provide financial support for the child until the age of 18. In addition, the father either must have
legitimated the child, have acknowledged paternity in writing under oath, or have paternity established by a
competent court. 33 The requirements of INA §301(g) also must be met in this scenario. This section requires
that, prior to the birth, the USC must have been physically present in the United States or in one of its outlying possessions for a period or periods totaling not less than five years, at least two of which were after age
14.
ADOPTION ISSUES
U.S. citizens adopted 12,753 children from other countries in fiscal year 2009. This is a decline from the
high of 22,990 intercountry adoptions in fiscal year 2004. 34 Many of these children became USCs when they
were admitted to the United States. Other children became LPRs upon admission, and the USC parent(s) will
need to re-adopt or finalize the adoption prior to the child’s 18th birthday in order to transmit U.S. citizen-
30
INA §301(g).
7 FAM 1131.4-2(a).
32
7 FAM 1131.4-2(a).
33
INA §309(a).
34
www.adoption.state.gov/news/total_chart.html.
31
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ship. 35 The citizenship rules for children adopted from Hague Convention countries differ slightly from those
for children adopted from non-Hague Convention countries. 36 An even more complicated scenario arises
when the child is adopted by USCs living abroad and the family continues to live abroad after the adoption. 37
For children residing in the United States after the adoption, the applicable law is contained in the CCA.
INA §320 provides for automatic citizenship for adopted children after all of the following are met (i.e., citizenship vests by operation of law when the last condition is met):
(1) At least one parent of the child is USC by either birth or naturalization
(2) The child is under age 18
(3) The child is residing in the United States in the legal and physical custody of the USC parent
(4) The child has been lawfully admitted to the United States as an immigrant or has qualified as a permanent resident after adjustment of status
In addition, the child must qualify as an “adopted child” under INA §101(b)(1)(E) or as an “orphan” under
INA §101(b)(1)(F) or (as of April 1, 2008) as an “adoptable child” under INA §101(b)(1)(G). All of the conditions must be satisfied before the child’s 18th birthday.
When the adopted child is coming from a non-Hague country and both of the adopting parents personally
saw or observed the child prior to or during the adoption, the child will receive an IR-3 visa and will be a
USC once admitted to the United States. 38 The child will receive a Certificate of Citizenship from U.S. Citizenship and Immigration Services (USCIS) automatically within 45 days of USCIS’s receipt of the visa
packet. 39
When the adopted child is from a non-Hague country and both of the adopting parents did not personally
see or observe the child prior to or during the adoption, or the adopting parents did not obtain a final order of
adoption, the child will receive an IR-4 visa and will be an LPR upon admission. 40 The child will need to be
re-adopted or have his or her adoption finalized prior to turning 18 to qualify for U.S. citizenship under INA
§320. 41 The child becomes a USC on the date that the state court judge signs the adoption decree by operation
of law. However, this does not give the family proof of citizenship. They must obtain a U.S. passport or Certificate of Citizenship for the child, the latter being the preferred document because it is a “forever” document
that definitively establishes citizenship.
35
INA §320; 8 CFR §§204.3(c)(1)(iv), (d)(1)(iv)(B)(4), and 204.305. If the USC parent fails to re-adopt or finalize the child’s
adoption in the United States prior to the child’s 18th birthday, the child can apply for citizenship as an adult. Unfortunately,
because the child’s lawful permanent resident card expires when the child turns 14, the child’s legal status often will appear
uncertain. The child can apply for a replacement lawful permanent resident card, using the USCIS Form I-90, as proof of lawful permanent resident status.
36
The coming into force of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption (Hague Adoption Convention) on April 1, 2008, has introduced a new immigration procedure for children emigrating
from a country where the Hague Adoption Convention is also in force. It is not enough that a country has merely signed or
ratified the Hague Adoption Convention. The Hague Convention must have entered into force for the case to be considered a
Hague case. For a complete list of Hague Convention partner countries, see
http://adoption.state.gov/hague/overview/countries.html .
37
INA §322.
38
INA §320; 9 FAM 42.21, N13.2-9.
39
USCIS Frequently Asked Questions, Intercountry Adoptions (Sept. 29, 2008), published on AILA InfoNet at Doc. No.
08093064 (posted Sept. 20, 2008).
40
9 FAM 42.21, N.13.2-9.
41
Some states do recognize the validity of a foreign decree without a full re-adoption. In this case, the attorney may submit a
court order recognizing the foreign adoption with the Certificate of Citizenship application. Alternatively, the state may not
allow re-adoption. In this case, the attorney should submit an opinion letter with the application for Certificate of Citizenship
along with a photocopy of the applicable statutes to establish that re-adoption or finalization is not necessary.
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When the adopted child is coming from a Hague Convention country and the adoption is full and final, the
child will receive an IH-3 visa and will be a USC upon admission. 42 The child will receive a Certificate of
Citizenship from USCIS automatically within 45 days of USCIS’s receipt of the visa packet. 43
One important distinction is that unlike in a non-Hague Convention case, there is no requirement that both
married adoptive parents personally see or observe the child prior to or during the adoption for the child to be
considered a USC upon admission. 44 However, if only one parent is listed on the final adoption order, the
adoption is not considered full and final. In this case, the family will receive an IH-4 visa and need to follow
the procedure outlined below for citizenship prior to the child’s 18th birthday. 45
When the adopted child is coming from a Hague Convention country and the adopting parents did not obtain a final order of adoption, the child will receive an IH-4 visa and will be an LPR upon admission. 46 The
child will need to have his or her adoption finalized in his or her home state before turning 18 to become a
USC. The child will become a USC on the date that the state court judge signs the adoption decree by operation of law, but the family must thereafter obtain proof of citizenship through a U.S. passport or Certificate of
Citizenship.
When the adopted child is physically present within the United States., and his or her last country of residence was not a Hague Convention country, the adoptive parent(s) may file for lawful permanent residence
for the child after two years of legal and physical custody. 47 If the child is adopted prior to turning 16 and
qualifies for LPR status prior to turning 18, the child will become a USC on the date that lawful permanent
residence is obtained. 48 As in the preceding examples, the family would need to apply for proof of citizenship
through a U.S. passport or Certificate of Citizenship.
When the adopted child is physically present within the United States, and his or her last country of residence immediately before coming to the United States was a Hague Convention country, the child is still
deemed to be habitually resident in the other Hague Convention country. 49 The consequence of this determination is that if the child is adopted in the United States without following the Hague process after April 1,
2008, and two years later, the family files the Forms I-130 and I-485, the filings will be denied. 50 This situation may arise frequently because the word in the nonimmigration legal community has not yet spread that a
domestic adoption should not be undertaken in these circumstances.
The crucial test is whether the child is considered a “habitual resident” of the Hague Convention partner
country even though he or she currently resides in the United States. 51 If the required proof cannot be obtained that the child is now a “habitual resident” of the United States, other avenues toward legal status
should be explored. These include the child’s return to the Hague Convention partner country, where the
adopting parents might be able to adopt the child pursuant to Hague Convention procedures, or the child’s
42
9 FAM 42.21 N14.13-9(c)(1), (d)(1).
USCIS Frequently Asked Questions, supra note 39.
44
9 FAM 42.21 N14.13-9(c)(1).
45
8 CFR §204.305(b).
46
9 FAM 42.21 N14.13-9(c)(2), (d)(2).
47
INA §101(b)(1)(E). The child also must be adopted prior to his or her 16th birthday, unless the child meets the sibling exception contained in that provision. To be eligible to adjust status, at least one adoptive parent must be a USC.
48
INA §320.
49
8 CFR §204.303(b).
50
8 CFR §204.2(d)(2)(vii)(F).
51
8 CFR §204.303(b). USCIS has taken the position that if the Central Authority of the child’s former habitual residence
makes a written determination that they are aware of the child’s presence in the United States and of the proposed adoption,
and have determined that the child is no longer a habitual resident in that country, and these finding are included in the written
adoption order, the I-130 will not be denied. USCIS Frequently Asked Questions, supra note 39. In reality, it has proved very
difficult, if not impossible, to obtain this written determination from Central Authorities of other countries.
43
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remaining in the United States and seeking LPR status through special immigrant juvenile or Violence
Against Women Act provisions. 52
For children residing outside the United States in a non-Hague Convention country after the adoption,
the following conditions need to be satisfied:
(1) The USC parent or grandparent was physically present in the United States or outlying possessions for
at least five years, at least two of which were after the age of 14
(2) Child is under age 18 at the time the entire process is completed
(3) Child is residing outside the United States in the legal and physical custody of the applying parent
(4) Child is temporarily present in the United States pursuant to a lawful admission and is maintaining
such lawful status
(5) Child must meet “orphan” definition or “adopted child” or “adoptable child” definition 53
The USC parent or grandparent or legal counsel files Form N-600K with supporting documentation at any
USCIS office in the United States. 54 Preliminary adjudication occurs within 60 days; if approved, the applicant receives an approval notice on form G-56. The USC parent or grandparent takes the approval notice to
the nearest U.S. consulate, which issues a B-2 visa for the child. 55 The USC parent or grandparent and child
come to the USCIS district office that issued the approval, and are interviewed. When final approval is obtained at the interview, the oath is administered to the child, and the Certificate of Citizenship is issued. 56 The
child then can obtain a Social Security number and U.S. passport.
For children residing outside the United States in a Hague Convention country after the adoption, there
are two options. The adopting parents can use the N-600K procedure outlined above if their adoption was
done pursuant to the Hague Convention. 57 This requires that the family living abroad obtain a Hague compliant home-study prior to the adoption, which is difficult given the dearth of accredited agencies operating
abroad. 58 If this is not feasible, the family can adopt the child satisfying the criteria of INA §101(b)(1)(E),
wait for two years of legal and physical custody after the adoption, and then file the I-130 to obtain an immigrant visa. The child would be a USC upon admission, but would need to obtain proof of citizenship through
a U.S. passport or Certificate of Citizenship. This route is only available if the two years of legal custody and
physical residence occurred outside the United States. 59
52
For a thorough discussion of “habitual residence” and options available in this scenario, See C. Hemphill, K. Stoutamyer
Law, and C. Rosalia, “Intercountry Adoptions: Understanding the Procedures One Year After Implementation of the Hague
Adoption Convention,” Immigration & Nationality Law Handbook 885 (AILA 2009–10 Ed.).
53
INA §322; 8 CFR §322.2.
54
If a USC parent of a child who otherwise meets the eligibility requirements of INA §322 has died, a USC parent of the deceased USC parent or a U.S. legal guardian can file the N-600K application at any time within five years of the parent’s death.
In that case, the child does not have to be residing with the applicant, but must be residing with someone who does not object
to the application.
55
The child also may come in under the visa waiver program. The WT stamp in the child’s passport or I-94 will also establish
lawful entry.
56
Practice pointer: Beware of age-outs, because the oath must be administered before the child turns 18.
57
8 CFR §§204.303(a)(2)(ii), 322.3(b)(1)(xii).
58
8 CFR §§204.311, 310(a)(3)(viii).
59
8 CFR §204.2(d)(2)(vii)(E).
Copyright © 2010 American Immigration Lawyers Association
State Court Proceedings and Impact on a Child Citizenship Question IR‐2, IR‐3 and IH‐3 IR‐4 and IH‐4 with guardianship 1 Necessary for state court proceedings? 2 Necessary to domesticate adoption? Not mandatory; If IR‐2 and IR‐3 want domestic birth certificates, can do this. Not needed for IH‐3, because state is supposed to issue one w/o court proceedings. No, see discussion above regarding birth certificates 3 Necessary to apply for a Certificate of Citizenship? No, it will come automatically from US CIS, Buffalo Office 4 Can child be deported No. Child is a US citizen without a Cert of Citizenship What if family never Irrelevant domesticates foreign decree or finalizes adoption? No: Issue: is child a citizen? Can child be deported without a state court proceeding? Yes 5 6 No – child is a US citizen IR‐4 and IH‐4 with finalized adoption from foreign country Yes Yes No, because there is not final decree. May be necessary to domesticate foreign guardianship. Yes, if you want a Certificate of Citizenship Yes Child remains a Legal Permanent Resident subject to risk of losing residency and being deported or excluded Yes, if you want a Certificate of Citizenship No: Issue ‐Is child citizen? Child remains a Legal Permanent Resident subject to risk of losing residency and being deported or excluded Yes 2011 AILA Teleconference/Web Conference
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Question IR‐2, IR‐3 and IH‐3 7a How does child become a USC in Question 5? 8 What if the child’s Residency N/A Card expires? They are only good for 10 years. 9 Can a child or an adult be deported because their Residency Card expires What if family never applies for Cert of Citizenship, but state court proceedings occurred before child turned 18. What if family finalizes adoption in US after child’s 18 birthday What if child changes name after entering US 10 11 12 Automatically, through Child Citizenship Act of 2000. Operation of Law N/A IR‐4 and IH‐4 with guardianship IR‐4 and IH‐4 with finalized adoption from foreign country Child files N‐400, 5 yrs after age Child files N‐400, 5 yrs 18 or 3 yrs after being married to after age 18 or 3 yrs a US citizen, whichever event after being married to occurs first a US citizen, whichever event occurs first Child’s status as a legal Child’s status as a legal permanent resident does not permanent resident expire, only card expires does not expire, only card expires No No N/A Child is a citizen by operation of law, Child Citizenship Act of 2000 Child can file N‐600 at any time, even after age 18, 21 or 60 Only benefit is state’s Vital Records will issue Certificate of Foreign Birth Need to file for a New Certificate of Citizenship Only benefit is state’s Vital Records will issue Certificate of Foreign Birth Must file I‐90, if no final adoption not finalized; With US final adoption, b/f age 18, file N‐600 with new name Child is a citizen by operation of law, Child Citizenship Act of 2000 Child can file N‐600 at any time, even after age 18, 21 or 60 Only benefit is state’s Vital Records will issue Cert of Foreign Birth Must file I‐90, if adoption not finalized. With final adoption b/f age 18, file N‐600 with new name. 2011 AILA Teleconference/Web Conference
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Disruption of Guardianship & Dissolution of Adoption If a placement fails while a child is under guardianship proceedings, it is a disruption. If a placement fails after a final decree of adoption ‐ regardless what type of visa the child had when entering US, it is a dissolution. Question IR‐2, IR‐3 or IH‐3 Visa Status upon entering US? US Citizen Status after state court US Citizen proceedings? Who signs Consents for Original Parents subsequent adoption? Should there be state court proceeding before disruption or dissolution? Subsequent Steps with US Department of Homeland Security, Citizenship & Immigration Services NO, not necessary IR‐4 & IH‐4 followed by a domestication or re adoption Legal Permanent Resident US Citizen IR‐4 & IH‐4 no domestication, nor re adoption Legal Permanent Resident Legal Permanent Resident Original parents must sign Original parents must sign consent for adoption consent for adoption, even if they were only the guardians NO, not necessary and would NO – that would be fraud on be fraud on the Court the Court None. Adoption is purely Yes, subsequent family files N‐
domestic proceeding: no 600, two years after the 2nd further benefits for child, adoption. 1 because child is already a USC. Child should obtain a new Cert of Citizenship with new name by filing N‐565 1. File new address with US CIS – AR11 2. After adoption file, I‐90 so child’s Residency Card will reflect his new name. 3. Two years after subsequent adoption, file N‐600. 2011 AILA Teleconference/Web Conference
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Rights, Obligations and BenefitsUSCs, LPRs, Undocs and NonImm [Type text] Undocumented1 Alien Must Register with Yes Selective Service at age 18 Yes Yes Enlist in US Military Yes No Drafted into US Military Vote in Federal, State and Local Elections Travel Outside of US Yes Yes, but cannot become a commissioned officer Yes Nonimmigrant Visa Holders Yes, if you plan to become a Legal Permanent Resident No Yes No Yes No2 and No3 No No Yes Only for limited time Yes, as long as visa has not expired Own a Shipping Vessel Obtain Certain Licenses Legally Work Yes Yes Not with a US registry Limited No. Once a child leaves the US, he may not be able to return and if he does return, he will have more difficulty obtaining immigration status Not with a US registry No Yes Yes No US Government Benefits Yes Yes Government Jobs Yes Not always No, only emergency medical care No Pay US Taxes Yes Yes Yes Only with certain types of Non immigrant visas No, only emergency medical care NO Yes Benefit US Citizen Legal Permanent Resident Not with US registry No 1
Children do not have mens rea, guilty minds. Therefore, we do not refer to them as being illegal. The preferred term , even with immigration officials is undocumented aliens. 2
Children who have been adopted may be excused, if they can show that they did not know they were adopted or did not know their immigration status. 3
Registering to vote accidently is a serious crime and can lead to deportation. 2011 AILA Teleconference/Web Conference
© 2011 American Immigration Lawyers Association
Rights, Obligations and BenefitsUSCs, LPRs, Undocs and NonImm [Type text] Eligible for Public Education Financial Aid for College Yes Yes Yes4 Nonimmigrant Visa Holder 5
Yes Yes Yes Deported or Removed from US Driver’s License US Passports Social Security Numbers No Yes Yes, but is not eligible for in‐state college tuition in many states Yes Yes, but is not eligible for in‐state college tuition in many states Yes Yes Yes Yes Yes No Yes No No No, but may obtain an ITIN6 Yes No Yes, but this does not always include work authorization Benefit US Citizen Legal Permanent Resident Undocumented Alien 4
US Supreme Court Decision If parents are in US working with a Nonimmigrant Visa, then the child is eligible for public education. 6
Identification Tax Identification Number – this can be used to pay taxes, have back accounts and other financial assets. 5
2011 AILA Teleconference/Web Conference
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Immigration Law and Benefits for the Layman This table is designed to provide a simple understanding of immigration law for children. There are many sophisticated nuances and many more immigration categories that children may fall into. Therefore, when presented with a difficult situation, it is recommended that you consult with an immigration attorney1. Hopefully, this Table provides just enough immigration law2 for the layman, who is not an immigration attorney. United State Citizens have permanency. They cannot be deported or lose their citizenship: children who enter the United States with IR‐2 visas and IR‐3 visas are US citizens. Legal Permanent Residents are adopted children who enter with IR‐4 visas. A child with an IR‐4 visa must travel with the passport of his nationality and his Resident Card, which is often referred to as the “Green Card”, is not green. Undocumented Immigrants are children who have entered the United States without immigration inspection. Usually, they did not have a passport or a visa to enter the US. Immigrants who enter in this manner are referred to as EWI’s, entry without inspection. The immigration law does not refer to these children as being illegal, because the law recognizes that children do not have mens rea, a capacity for a crime. Nonimmigrant Visa Holders are children who have entered the United States with some type of visa, such as a B‐2, H‐4, L‐4 etc; they were inspected; and have an Arrival Departure Record Card in their passport. Even though the passport, visa and authorized stay (stated on the Arrival Departure Record) may have expired, the fact that they entered with inspection remains an important factor. Special Immigrant Juveniles are children who are in the United States and are either in foster care or are eligible for long term foster care. The parents or guardians of these children abandoned, abused or neglected them. The state court has determined that it is not in the child’s best interest to return to his native country. Once the state court has made such determinations, the child may apply for legal permanent residency with US CIS. VAWA – if a parent who is a citizen or a legal resident abuses a child, that child parent and or the child then, he may be eligible for his legal permanent residency under the Violence Against Women and Children Act. S, T and U Visas are available if a child assists law enforcement, is a victim of trafficking or a victim of a crime. These are rare, but sometimes available for children who are already in the US. 1
An attorney who is a member of the American Immigration Lawyers Association, AILA is a good source. Additionally, many not‐for‐profits are able to provide excellent guidance. Catholic Social Service, Episcopal Ministries, Lutheran Ministries and Jewish Family Service vary in services they provide from city to city. However, they often have phenomenal experience and knowledge. 2
The Immigration Law Resources Center in San Francisco, California provides excellent legal guidance. Its publication, Living in the Unites States, A Guide for Immigrant Youth , 2007 was inspiration and a resource for this table. www.Ilrc.org is an excellent resource, which has many documents available free on line. 2011 AILA Teleconference/Web Conference
© 2011 American Immigration Lawyers Association
Undocumented3 Alien Must Register with Yes Selective Service at age 18 Yes Yes Enlist in US Military Yes No Drafted into US Military Vote in Federal, State and Local Elections Travel Outside of US Yes Yes, but cannot become a commissioned officer Yes Nonimmigrant Visa Holders Yes, if you plan to become a Legal Permanent Resident No Yes No Yes No4 and No5 No No Yes Only for limited time Yes, as long as visa has not expired Own a Shipping Vessel Obtain Certain Licenses Legally Work Yes Yes Not with a US registry Limited No. Once a child leaves the US, he may not be able to return and if he does return, he will have more difficulty obtaining immigration status Not with a US registry No Yes Yes No US Government Benefits Yes Yes Government Jobs Yes Not always No, only emergency medical care No Pay US Taxes Yes Yes Yes Only with certain types of Non immigrant visas No, only emergency medical care NO Yes Benefit US Citizen Legal Permanent Resident Not with US registry No 3
Children do not have mens rea, guilty minds. Therefore, we do not refer to them as being illegal. The preferred term , even with immigration officials is undocumented aliens. 4
Children who have been adopted may be excused, if they can show that they did not know they were adopted or did not know their immigration status. 5
Registering to vote accidently is a serious crime and can lead to deportation. 2011 AILA Teleconference/Web Conference
© 2011 American Immigration Lawyers Association
Eligible for Public Education Financial Aid for College Yes Yes Yes6 Nonimmigrant Visa Holder 7
Yes Yes Yes Deported or Removed from US Driver’s License US Passports Social Security Numbers No Yes Yes, but is not eligible for in‐state college tuition in many states Yes Yes, but is not eligible for in‐state college tuition in many states Yes Yes Yes Yes Yes No Yes No No No, but may obtain an ITIN8 Yes No Yes, but this does not always include work authorization Benefit US Citizen Legal Permanent Resident Undocumented Alien 6
US Supreme Court Decision If parents are in US working with a Nonimmigrant Visa, then the child is eligible for public education. 8
Identification Tax Identification Number – this can be used to pay taxes, have back accounts and other financial assets. 7
2011 AILA Teleconference/Web Conference
© 2011 American Immigration Lawyers Association