February 2009 Archives

Under the CCA, your child will automatically acquire U.S. citizenship on the date that all of the following requirements are satisfied:

• At least one adoptive parent is a U.S. citizen,
• The child is under 18 years of age,
• There is a full and final adoption of the child, and
• The child is admitted to the United States as an immigrant

A child who is born in the United States, or born abroad to a U.S. citizen(s) who lived in (or came to) the United States for a period of time prior to the child's birth, is considered a U.S. citizen at birth.

A child who is:

• born to a U.S. citizen who did not live in (or come to) the United States for a period of time prior to the child's birth, or
• born to one U.S. citizen parent and one alien parent or two alien parents who naturalize after the child's birth, or
• adopted and is permanently residing in the United States can become a U.S. citizen by action of law on the date on which all of the following requirements have been met:
• The child was lawfully admitted for permanent residence*; and
• Either parent was a United States citizen by birth or naturalization**; and
• The child was still under 18 years of age; and
• The child was not married; and
• The child was the parent's legitimate child or was legitimated by the parent before the child's 16th birthday (Stepchildren or children born out of wedlock who were not legitimated before their 16th birthday do not derive United States citizenship through their parents.); and
• If adopted, the child met the requirements of section 101(b)(1)(E) or (F) and has had a full and final adoption; and
• The child was residing in the United States in the legal custody of the U.S. citizen parent (this includes joint custody); and
• The child was residing in the United States in the physical custody of the U.S. citizen parent.

If you and your child meet all of these requirements, you may obtain a U.S. passport for the child as evidence of citizenship. If the child needs further evidence of citizenship, you may submit an "Application for Certificate of Citizenship" (Form N-600) to U.S. of Citizenship and Immigration Services (formerly known as the INS) to obtain a Certificate of Citizenship. If the child meets the requirements of Section 101(b)(1) of the Immigration and Nationality Act as an adopted child, you may submit an 'Application for Certificate of Citizenship on Behalf of an Adopted Child' (Form N-643). (Note: a child who meets these requirements before his or her 18th birthday may obtain a passport or Certificate of Citizenship at any time, even after he or she turns 18.)

*NOTE: Children who immigrate in the 'IR-3' or 'IR-4' categories must have had an immigrant petition filed on their behalf before their 16th birthday; see answers to Question 25 below. All adoptions for any other type of immigration benefit, including naturalization, must be completed by the child's 16th birthday, with one exception: A child adopted while under the age of 18 years by the same parents who adopted a natural sibling who met the usual requirements.

**NOTE: The 'one U.S. citizen parent' rule only applies to children who were under age 18 on or after February 27, 2001. For children claiming automatic citizenship prior to this date, the individual in certain cases would have to establish that the parent or parents who were not U.S. citizens by birth had naturalized (or that the naturalizing parent was separated or legally divorced and had legal custody of the child).

A child who is regularly residing IN the United States can become a citizen of the United States only by meeting the requirements listed in the answer to Question 24 above. If a child regularly resides IN the United States and is not a lawful permanent resident, he or she cannot acquire citizenship automatically until he or she is granted lawful permanent residence. If a child who has been lawfully admitted for permanent residence fails to qualify for citizenship under the provisions of law, the child may apply for naturalization by filing an N-400 after reaching 18 years of age, provided that he or she has the required 5 years of lawful permanent residence.

U.S. citizens may apply for citizenship for their children by birth or adoption who do NOT regularly reside in the United States, if all of the following conditions are met:

 

• The child is under 18 years of age; and
• The child is not married; and
• The child regularly resides outside the United States; and
• The child is temporarily present in the United States pursuant to a lawful admission and is maintaining such lawful status; and
• The child is in legal and physical custody of a parent who is a U.S. citizen; and
• The child is the U.S. citizen's legitimate child, or was legitimated before the child's 16th birthday (stepchildren or children born out of wedlock who were not legitimated before their 16th birthday are not eligible for this procedure); and
• If adopted, the child meets the requirements of section 101(b)(1)(E) or (F) and had a full and final adoption; and either of the following is true:
• The citizen parent has lived at least 5 years in the United States, and at least 2 of which were after the citizen parent's 14th birthday; or
• If the child's citizen parent has not lived in the United States for at least 5 years, 2 of which were after that parent's 14th birthday, the citizen parent currently has a parent (the child's grandparent) who:
• is also a U.S. citizen; and
• lived in the United States for 5 years, at least 2 of which were after the citizen grandparent's 14th birthday; and
• is still living at the time of the adjudication of the application and the taking of the Oath.

If the foregoing conditions are met, the citizen parent can apply for a certificate of citizenship in behalf of a legitimate or legitimated child using an "Application for Certificate of Citizenship" (Form N-600) or, in the case of an adopted child, an "Application for Certificate of Citizenship on Behalf of An Adopted Child" (Form N-643). If the citizen parent is relying on the grandparent's physical presence in the United States, the citizen parent should also submit Form N-643, Supplement A. Both the citizen parent and the child must appear at an interview with an U.S. of Citizenship and Immigration Services (formerly known as the INS) officer in the United States. The child must meet ALL of the required conditions at the time when he or she takes the Oath of Allegiance (Note: the Oath may be waived if the child is too young to understand it).

In many/most cases, a child born outside the U.S. to a U.S. citizen or citizens is a U.S. citizen by birth (and, in the opinions of most legal scholars, qualifies as a "natural born" citizen eligible to become President or Vice-President).

So the question is not whether the child can "become" a U.S. citizen, but rather how the parents can go about documenting the fact of the child's citizenship.

The law on U.S. citizenship for children born outside the U.S. depends on when the child was born, whether one or both parents are U.S. citizens, and how long each parent lived in the U.S. prior (not necessarily immediately prior) to the child's birth. A table describing U.S. law on this subject during the 20th century (for children born in wedlock) can be found on the Web site of Buffalo immigration lawyer Joe Grasmick. Check with a U.S. consulate for an exact interpretation of the rules with regard to a specific situation; however, here's a summary of the rules as they pertain to children born now or in the recent past.

For children born abroad since 14 November 1986 to a married couple consisting of two U.S. citizens, at least one of the parents must have "had a residence" in the U.S. at some time in his or her life, prior to the child's birth. Judging by what I was told in early 1994 by the U.S. consulate in Toronto when I applied to have my son (born in Canada) registered as a U.S. citizen, U.S. officials seem to define "residence" in the U.S. as being physical presence in the U.S. for a total of at least one year prior to the child's birth. However, the actual law (as enacted by Congress) does not impose this interpretation.

For children born abroad since 14 November 1986 to a married couple consisting of one U.S. citizen and one non-citizen, the American parent must have been "physically present" in the U.S. for a total of at least five years prior to the birth of the child. Further, at least two years out of this five-year period must have been after the parent reached age 14 (e.g., no good if you lived in the U.S. from birth till age five, then left the country never to return). From 24 December 1952 to 14 November 1986, the minimum requirement was ten years (five years of which had to have been after the parent's 14th birthday).

The time spent in the U.S. need not have been immediately prior to the child's birth, and it is possible to combine multiple separate periods of physical presence in the U.S. to reach the required figures. Additionally, time spent in U.S. territories or possessions can be counted -- as can time spent abroad in the U.S. military, in U.S. government employment, or as a dependent spouse or child of someone posted abroad under such circumstances.

These rules are designed to prevent the proliferation of generation after generation of "Americans" who would be citizens by descent without ever having set foot in the U.S.

Different rules apply to a child born out of wedlock outside the U.S. If the mother of an "illegitimate" child is a U.S. citizen, her foreign-born child is a U.S. citizen by birth if she had ever spent at least one year's worth of continuous literal, physical presence in the U.S. If the father is a U.S. citizen (and the mother is not), the child is a U.S. citizen only if the father's paternity is formally established and if the father has agreed to support the child. (This more stringent requirement for an American father to pass along U.S. citizenship to a foreign-born illegitimate son may be on shaky legal ground; see the discussions elsewhere in this FAQ of the court cases Miller v. Albright and U.S. v. Ahumada Aguilar.)

An American who has a child born outside the U.S. should contact the nearest U.S. embassy or consulate as soon as possible, to request an application for a Consular Report of Birth Abroad. This form needs to be filled out by both parents and returned with payment (currently US$10 or the local equivalent, money order or cash only, personal checks or credit cards not accepted) and supporting documents including parents' birth certificates, marriage certificate, passports, and the child's own birth certificate. For the supporting documents to be returned, you must enclose sufficient local postage for registered mail (ask the consulate for the required amount), or else bring everything in person to the consulate (in which case they will prepare the certificate while you wait; expect the process to take about an hour).

Note, once again, that a child born abroad under these circumstances is a U.S. citizen by birth (in addition to possibly being a citizen of the country of birth). The "consular report of birth abroad" is not a bestowal of U.S. citizenship, but simply an acknowledgment of same.

Most likely yes. The U.S. Constitution (Article II, Section 1, Subsection 4) says: "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."

The term "natural born citizen" is not used anywhere else in the Constitution, and it has never been the subject of any federal court ruling. Hence, its exact meaning could be subject to controversy.

While some have suggested that perhaps a "natural born citizen" must have been born on U.S. territory (i.e., in keeping with the definition of a citizen given in the 14th Amendment), other legal experts believe the term refers to anyone who has U.S. citizenship from the moment of his or her birth -- i.e., someone who did not have to be "naturalized" because he/she was born "natural" (i.e., born a citizen).

The first Congress enacted a citizenship law which stated that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens". [Act of Mar. 26, 1790, ch. 3, 1 Stat. 104.] This strongly suggests that the phrase was understood by the framers of the Constitution to refer to citizenship by birth.

At least three Presidential candidates in recent memory were born outside the U.S. proper:

* Barry Goldwater, the 1964 Republican candidate, was born in the Arizona Territory in 1909 (Arizona did not become the 48th state until 1912). Goldwater lost the 1964 election to Lyndon Johnson.

* George Romney, a 1968 Republican hopeful, was born in Mexico in 1907 to American parents who had moved there to escape anti-Mormon persecution in the U.S. (Contrary to a widely held popular misconception, by the way, Romney's parents were settlers in Mexico, not missionaries.) Romney's campaign fizzled following a gaffe about his having been "brainwashed" by the military establishment into supporting U.S. involvement in the Vietnam conflict.

* John McCain, an early Republican hopeful in the current (2000) campaign, was born in the Panama Canal Zone in 1936 to American parents. McCain dropped out of the campaign in favor of the Republicans' eventual nominee, George W. Bush.

Some questions were raised at the time regarding both Goldwater and Romney's eligibility for the nation's highest office, but no formal legal challenge was mounted in either case.

We will probably never really know whether an American citizen born outside the U.S. can become President (or Vice-President) until a lawsuit involving such a candidate finds its way into the courts. This could happen, of course, if a foreign-born candidate were elected and the electoral college's choice were challenged in court; or, more likely, if such a candidate's right to federal campaign subsidies (matching funds) were questioned.

No. If your child satisfies the requirements, he or she automatically acquires U.S. citizenship by operation of law. If you completed a full and final adoption abroad, your child automatically becomes a citizen on the day he or she is admitted to the United States as an immigrant. If you complete the adoption or have to re-adopt your child after your child has been admitted to the United States as an immigrant, your child automatically becomes a citizen on the day the full and final adoption is completed. Your child's citizenship status is no longer dependent on U.S. of Citizenship and Immigration Services (formerly known as the INS) approving a naturalization application.

Unfortunately, U.S. of Citizenship and Immigration Services (formerly known as the INS) is not able to automatically provide adoptive parents with documentation of their child's citizenship at this time. However, U.S. of Citizenship and Immigration Services (formerly known as the INS) will work with Congress, the adoption community and other stakeholders to re-engineer the current process of issuing Certificates of Citizenship for adopted children. This re-engineering will address both the application process and costs.

If you want documentation of your child's U.S. citizenship, you may obtain a Certificate of Citizenship from U.S. of Citizenship and Immigration Services (formerly known as the INS) and/or a U.S. passport from the Department of State. You do not need a Certificate of Citizenship issued by U.S. of Citizenship and Immigration Services (formerly known as the INS) in order to obtain a passport for your child.

No. Your child's citizenship status will not be negatively affected if you wait for U.S. of Citizenship and Immigration Services (formerly known as the INS) to re-engineer its process before you document your child's citizenship. If your child satisfies the requirements for automatic acquisition of citizenship, his or her citizenship is obtained by operation of law and cannot be lost by failure to document it. You can obtain a passport from the Department of State, even if you decide to wait for U.S. of Citizenship and Immigration Services (formerly known as the INS) to re-engineer its process. As part of those efforts U.S. of Citizenship and Immigration Services (formerly known as the INS) intends to implement a streamlined process for the automatic issuance of Certificates of Citizenship.

Yes. The U.S. of Citizenship and Immigration Services (formerly known as the INS) intends to remove the Affidavit of Support (Form I-864) requirement for children adopted abroad who will receive citizenship at the time of entry as lawful permanent residents. This is the vast majority of cases. However, children born and residing outside of the United States or children who will not be adopted until after they enter the United States will still require the affidavit of support.

No. In order for a foreign-born child living outside the United States to acquire citizenship, the U.S. citizen parent must still apply for naturalization on behalf of the child. The naturalization process for such a child cannot take place overseas. The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance.

To be eligible, a child must meet the following requirements:

• The child has at least one U.S. citizen parent (by birth or naturalization);
• The U.S. citizen parent has been physically present in the United States for at least five years, at least two of which were after the age of 14-or the U.S. citizen parent has a citizen parent who has been physically present in the United States for at least five years, at least two of which were after the age of 14;
• The child is under 18 years of age;
• The child is residing outside the United States in the legal and physical custody of the U.S. citizen parent
• The child is temporarily present in the United States-having entered the United States lawfully and maintaining lawful status in the United States; and
• The child must meet the requirements applicable to adopted children under immigration law

If the naturalization application is approved, the child must take the same oath of allegiance administered to adult naturalization applicants. If the child is too young to understand the oath, U.S. of Citizenship and Immigration Services (formerly known as the INS) may waive the oath requirement.

No. Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under the CCA, even if they meet all other criteria. If they wish to become U.S. citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.

The following are all ways your child may qualify for U.S. citizenship under the law:

 

1. Birth Abroad to Two U.S. Citizen Parents in Wedlock: A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA). One of the parents MUST have resided in the U.S. prior to the child's birth. No specific period of time for such prior residence is required.
2. Birth Abroad to One Citizen and One Alien Parent in Wedlock: A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child.
3. Birth Abroad Out-of-Wedlock to a U.S. Citizen Father: A child born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(a) INA provided:
1. a blood relationship between the applicant and the father is established by clear and convincing evidence;
2. the father had the nationality of the United States at the time of the applicant's birth;
3. the father (unless deceased) had agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years, and
4. while the person is under the age of 18 years --
1. applicant is legitimated under the law of their residence or domicile,
2. father acknowledges paternity of the person in writing under oath, or
3. the paternity of the applicant is established by adjudication court.
5. Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(c) INA if the mother was a U.S. citizen at the time of the child's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year

If you are planning an adoption, here are some terms used in the process. 

Open Adoption - Adoption in which identifying information is shared between birth and adoptive parents and there is a plan for continued contact after the placement is made.

Mediated Open Adoption - is planned communication between birth and adoptive families while the child is growing up, spelled out in a written agreement. The agreement is mediated by an adoption agency representative who is sensitive to the issues for both sides.

Semi-Open Adoption - Birth and adoptive families who stay in contact by way of an intermediary as opposed to direct contact; they may or may not have exchanged identifying information

.

Openness - in adoption refers to various forms of communication between birth parents and adoptive parents, such as an exchange of pictures and letters, meeting but not having ongoing contact, or meeting on a first name basis.

Open Placement - the birth and adoptive family meet at the beginning of the adoption; may or may not exchange identifying information; have no commitment of ongoing contact.

Independent Adoption - is an adoption that is carried out often with no counseling provided for anyone. The child is simply placed with the adoptive family.

Closed or Confidential Adoption - the birth parents and adoptive parents do not meet, do not share identifying information and do not keep in contact.

Triad ( the adoption triangle) - the three categories of people directly involved in adoption: the birth parents, the adoptee, and the adoptive parents.

Birth Mother - (birth parent, biological parent) - refers to the person who gave birth to a baby. It is a preferred term as opposed to natural mother or real mother, causing implication that if the birth mother makes an adoption plan the adoptive parents are unreal or unnatural.

Birth Father - (birth parent, biological parent) - refers to the male responsible for refers to the male responsible for the conception of a child. The child born to the woman who was impregnated by this person will have the genetic components of the birth father and the birth mother.

Legal Parent - (mother/father) - refers to the woman to whom a child was born and the father of the child who is married to the mother or has filed a notice of intent to claim paternity.

Putative Father - (alleged) - refers to the person who is thought to be the biological father of a child but has not acknowledged this fact nor filed an intent to determine that he is the biological father.

Permanent Surrender / Relinquishment - refers to birth parents legally signing over their child to an adoption agency. Until the child is placed for adoption, the agency has custody of the child. Other words used are release of surrender.

Certificate of Paternity or Voluntary Acknowldgement of Paternity

The early establishment of paternity and child support orders create a solid foundation for a child's security and family stability.  Just the knowledge of the father's name and his medical history can help the child in years to come.  DNA Testing is in the infancy stage today - we do not know what the future holds for this very promising technolgy.  At all times, what is in the best interest of the child should be considered as the priority in establishing correct and legal paternity.    At the time of birth, hospital staff will supply a set of documents where the new parents establish paternity in the form of Certificates of Paternity or Acknowledgment of Paternity.  If the new parents were married when the child was born, the husband is automatically presumed to be the legal father and that is noted on Certificate of Paternity.  If, under the law, the father is not automatically presumed, he may at his own desire, sign an Acknowledgment of Paternity and hospital staff are able to help you complete the paperwork.  If the new parents were not married, legal paternity must be establsihed in order to obtain a support order for the child; obtain health insurance, if it is available through an employer and protect the child's rights to benefits if the father dies, such as money or property left in a will, military benefits or Social Security benefits.  There are a few instances in which an unmarried man is presumed to be the legal biological father (by the State of New Jersey) however, if the father does not agree that the child is his, he should not sign hospital paperwork until he has had a DNA test to confirm paternity,  New parents may obtain a State-funded test (financial criteria apply) or a private test for their own peace of mind.  For a few dollars and in just a few short days, a man and his family can know for sure that the child is his.

    A MAN IS PRESUMED TO BE THE FATHER (In New Jersey) OF A CHILD, IF;

1.)  A child is born within 300 days after the marriage is terminated by a death, annulment or divorce;
2.)  If the birth parents' attempted to marry each other although the attempted marriage is or could be declared invalid by a court and the birth occurred within 300 days after the termination of cohabitation;
3.)  The father has acknowledged his paternity of the child in writing filed with the local registrar of vital statistics and the mother does not dispute the acknowledgment in writing filed with the local registrar, within a reasonable time after being so in formed.;
4.)  The father is obligated to support the child under a written voluntary agreement or court order;
5.)  While the child is under the age of majority, the father receives the child into his home, provides support and openly holds out the child as his natural child.

The percent of children born to unwed parents throughout the United States and in New Jersey exceeds 30%.  The relative affordability and convenience of non-invasive DNA testing to determine paternity (and other family relationships) should provide a means to support all of the children whose paternity is not automatically established by law or circumstances. You do not need to have legal status in the United States to obtain a private paternity test.   

ARE YOU RE-UNITING WITH YOUR FAMILY MEMBERS IN INDIA

Most information necessary to process your immigrant visa application is available on the U.S. Consulate's (in Mumbai) website at http://mumbai.usconsulate.gov. 

 

For specific inquiries here are some links that may assist you in moving through the immigration process from India to the United States:   

Visa appointments:

http://mumbai.usconsulate.gov/appointment_information.html

 

Application Forms - http://mumbai.usconsulate.gov/ivforms.html

 

Visa Fees - http://mumbai.usconsulate.gov/ivfees.html

 

Priority Date: http://Mumbai.usconsulate.gov/cut_off_dates.html

 

Direct Email:  MUMBAIIV@state.gov

 

If you are unable to find the information you need on the above links, please submit an email using the phrase "Request for Specific Information" in the subject line.

Forensic DNA analysis technology has improved since the mid-1980s.  Technology has advance from a method that was often contested to today's Polymerase Chain Reaction - Short Terminal Reports (PCR-STR) analysis.  PCR-STR analysis has been determined admissible in almost every State.  Defense attorneys should consult with an expert in the field of DNA collection and analysis. The DNA expert can prepare challenges against how the DNA evidence was collected, packaged, documented and transported to the laboratory.  Did the lab technician have the experience and knowledge necessary to properly perform the test and do the statistical analysis? Is his/her conclusion properly supported by scientific evidence.  Issues such as contamination, additional analysis and chain of custody can be used to create a doubt about the prosecutor's case.  The DNA expert should be able to convey to the jurors the complexity of the science behind DNA analysis.

Forensic DNA laboratories can help you or your clients with issues relating to:

Criminal Matters, including murder or burglary
Sexual Assault
Criminal Paternity
Re-testing of State's Evidence
Auto accident and other fraud investigations
Product Tampering
Drug Test sample confirmations (non-DOT)