Citizenship and children: frequently asked questions

For the average person, U.S. immigration laws are intimidating and confusing. Of all of these rules, those specifically pertaining to children and families can be especially complicated because they are the most likely to spark intense emotions. At Zontlaw Services, our attorneys have not only the skills and experience needed to answer your questions, but also the compassion needed to put your mind at ease. With that in mind, we are devoting this article to addressing some of the greatest concerns about children and U.S. citizenship.

Do I automatically get a Green Card if my child was born here?

If you came to the United States without proper documentation, but your child or children were born here, you have probably heard conflicting stories about how it affects your immigration status. Specifically, you may have heard that the birth of a child here results in your automatic or immediate eligibility for a Green Card. That is a common misconception. The truth is that your child’s birth in the United States may allow you to become a permanent resident or citizen — eventually. Because your child automatically becomes a U.S. citizen if he or she is born here,   your child can sponsor your application for permanent residency or citizenship — but not until he or she is 21. 

Even if your child is at least 21 and wants to be your sponsor, his or her willingness to do so does not guarantee that your application will be approved. You must also meet all criteria for permanent residency or citizenship. Whether you are deported (sent back to your home country) or you are allowed to remain in the United States until you meet these standards depends on the circumstances of your case.

How can I help my child or children become permanent residents?

But what if you want to help your child become a “legal permanent resident” of the United States? How does your own immigration status affect your ability to do so? The United States Customs and Immigrations Services (USCIS) provides comprehensive information on this topic.

Before we can share it with you, however,  it is important to understand some of the basic legal definitions the government uses in connection with immigration cases. In this context, a “child” is less than 21 years of age and is not married. A “son” or “daughter” is someone who is married and/or is at least 21 years of age. In certain circumstances, step-children and adoptive children are also classified as “children” for immigration purposes

Now,  in general, if you are already  a U.S. citizen or if you have a Green Card, the government allows you to sponsor an application for Legal Permanent Residency (or a Green Card) for a child or children, son(s) and daughter(s). The rules are classified this way:

  • If you are a U.S. citizen, you can file a petition for your children; your unmarried sons and daughters and their children; your married sons and daughters of any age, their spouse and/or their children.
  • If you have a Green Card, you can sponsor an application for Legal Permanent Residency for your children and their children; and your unmarried sons and daughters and their children.

To do so, you must begin by filing the form that establishes your relationship to the person who wants to live here. This is officially known as Form I-130 or the “Petition for Alien Relative,” and associated fee. The type and number of supporting documents you must provide depend on whether you’re a citizen or have a green card; and the nature of your relationship. For example, the proof supplied by biological (genetic) parents differs from the proof that must be submitted by step-parents or adoptive parents. When and if your child/children must also submit paperwork depends on whether they are living in the U.S. or abroad.

If you are a U.S. citizen, the U.S. State Department will “invite” the child/children you have sponsored to apply for immigrant visa(s) once the Form I-130 is approved. Once they have been lawfully admitted into the United States and meet certain criteria, they can apply for a Green Card/s.

If you are a Legal Permanent Resident of the United States and filed a petition on behalf of your child/children, there may be a considerable delay — sometimes years —  between the receipt/approval of the Form I-130 and the time at which your child/children is invited to apply for an immigrant visa. Successful completion of the immigrant visa application paves the way for admittance to and possible lawful residence in the United States.

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Obtaining permanent residency or U.S. citizenship for adopted children

As anyone who has adopted a child already knows, the process can be incredibly rewarding, incredibly emotional, and, sadly, incredibly difficult. Because of the additional bureaucracy involved, international adoption tends to be even more complex.

The process for obtaining permanent residency or U.S. citizenship for a child adopted from another country depends on several factors. These include the country from which the child was adopted, the international rules governing adoption of children from that country, and the type of visa granted to that child as a result. According to USCIS an adopted child is eligible to become an American citizen when he or she arrives in the United States if:

  • He or she qualifies as an “immediate relative” under applicable definitions.
  • Is legally recognized as a legal permanent resident (LPR) upon arrival.
  • Will be living in the U.S. citizen parent(s)’ legal and physical custody while residing in the United States.
  • Is less than 18 years of age when all of these conditions are satisfied.

An adopted child will receive a Green Card through the mail and may be eligible for U.S. citizenship later on if he or she travels to the United States on an IR-2, IR-4 or IH-2 visa. On the other hand, an adopted child who comes here on an IR-3 or IH-3 visa and meets all criteria for eligibility will automatically receive a Certificate of Citizenship through the mail. The only exception to the latter is if the adopted child arrived in the United States on an IR-3 or IH-3 visa prior to January 1, 2004.

What is a Certificate of Citizenship and why is it important?

As its name indicates, a Certificate of Citizenship is a document issued by USCIS that serves as proof of U.S. citizenship. Specifically, it can serve  as proof of U.S. citizenship for adopted children. As such, it can also be used to obtain a U.S. passport.

As noted above, there are certain circumstances in which an adopted child automatically qualifies for a Certificate of Citizenship and certain circumstances in which you can apply for one on his or her behalf. In most cases, an adopted child qualifies for a Certificate of Citizenship if:

  • He or she can be classified as a child under applicable definitions.
  • He or she is less than 18 years of age when he or she meets necessary criteria for eligibility
  • At least one of his or her parents is a U.S. citizen.

However, the processes for obtaining a Certificate of Citizenship differs depending on the circumstances of your case. The most important of these is whether the child is/will be living in the United States with you, or whether he or she is/will be living abroad. This determines whether you will file  Form N-600, Application for Certificate of Citizenship, or Form N-600K Application for Citizenship and Certificate.

According to USCIS, families with adopted children who will live outside the U.S. must file Form N-600K and meet the following criteria:

  • The child must be less than 18 years of age when the application is filed and adjudicated.
  • The parent or grandparent who is a U.S. citizen parent must meet certain requirements pertaining to “physical presence.”
  • The U.S. citizen parent must have legal and physical custody of the adopted child who is or will be residing in another country (unless the parent is deceased).
  • The child must be in the United States on an interim basis after following lawful entry and maintain his or her status for the applicable period.
  • The child must be less than 18 years of age when he or she  takes the Oath of Allegiance before a USCIS officer, unless doing so is waived.

When does a child born outside of the United States receive automatic citizenship?

Many children born outside of the United States are nevertheless legally recognized as U.S. citizens. Depending on the circumstances, some achieve this status at birth and others achieve it after birth, but before they turn 18. The main factor that determines this is the U.S. citizenship of one or both parents. Other factors taken into consideration include but are not limited to  the parents’ marital status and when the child was born.

In some circumstances, children can have more than one citizenship simultaneously. For instance, in a case where a foreign couple has a child in the United States, the child will have the U.S. and foreign citizenship, as long as dual citizenship is acknowledged in the parents’ homeland. If an American couple has a child in another country that recognizes dual citizenship, the child will be be a U.S. citizen and a citizen of the country where it was born.

There are still other circumstances in which children living are not legally recognized as U.S. citizens at all. This is the case if you and your children came here as undocumented immigrants.

In 2012, then-U.S. President Barack Obama created Deferred Action for Childhood Arrivals or (DACA) program. This program temporarily shielded children of undocumented immigrants who met certain criteria from deportation. It also allowed them to apply for work permits. However, U.S. President Donald Trump announced plans to end the program earlier this year. Whether or not this actually happens remains to be seen.

If you or your loved ones have been affected by any or all of these issues, you may be scared, overwhelmed and confused. But you are not alone. At Zontlaw Services, our attorneys have the experience, skill and dedication needed to address these matters.

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