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Cutting-Edge Citizenship
Issues
Citizenship for and Naturalization of Children and
The Child Citizenship Act of 2000
By
Michael A. Bander,
Stephen M. Bander and
Carmen A. DiPlacido
Published in the 23rd Annual
Immigration Law Update presented by The Florida Bar Continuing Legal
Education Committee, The American Immigration Lawyers Association (AILA),
South Florida Chapter, and the International Law Section.
I. In General
A. New Law
1. Child Citizenship
Act was signed into law by President Clinton on October 30, 2000,
and became effective on February 27, 2001 (the “CCA).
2. Interim Rule
published on June 13, 2001.
B. Definition
1. Child
“The term “child”
means an unmarried person under 21 years of age and includes a child
legitimated under the law of the child’s residence or domicile,
or under the law of the father’s residence or domicile, whether
in the United States or elsewhere, and, except as otherwise provided
in sections 320, and 321 of title III, a child adopted in the United
States, if such legitimation or adoption takes place before the child
reaches the age of 16 years (except to the extent that the child is
described in subparagraph (E) (ii) or (F) (ii) of subsection (b) (1)),
and the child is in the legal custody of the legitimating or adopting
parent or parents at the time of such legitimation or adoption.”
INA §101 (c)(1), 8 U.S.C. §1101(c)(1).
2. Adopted Children
“A child adopted
while under the age of sixteen years if the child has been in the
legal custody of, and has resided with, the adopting parent or parents
for at least two years. . . .” INA §101(b)(1)(E)(i), 8
U.S.C. § 1101(b)(1)(E)(i).
3. Orphans
“A child, under the
age of sixteen at the time a petition is filed in his behalf to accord
a classification as an immediate relative under section 201 (b), who
is an orphan because of the death or disappearance of, abandonment
or desertion by, or separation or loss from, both parents, or for
whom the sole or surviving parent is incapable of providing the proper
care and has in writing irrevocably released the child for emigration
and adoption; who has been adopted abroad by a U.S. citizen and spouse
jointly, or by an unmarried United States citizen at least 25 years
of age, who personally saw and observed the child prior to or during
the adoption proceedings; or who is coming to the U.S. for adoption
by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen
at least 25 years of age, who have or has complied with the preadoption
requirements, if any, of the child’s proposed residence.”
INA §101(b)(1)(F)(i), 8 U.S.C. §1101(b)(1)(F)(i).
“[A] child who: (I)
is a natural sibling of a child described in clause (E)(i) or (F)(i);
(II) was adopted by the adoptive parent or parents of the sibling
described in such clause; and (III) is otherwise described in such
clause, except that the child was adopted while under the age of 18
years.” INA §101(b)(1)(E)(ii), 8 U.S.C. §1101(b)(1)(E)(ii).
II. Children Born Outside
the United States and Residing Permanently in the United States and
Who Do Not Acquire Citizenship Under INA §301 or §309; Conditions
Under Which Citizenship Automatically Acquired
A. CCA
1. “ (a) A child born outside of the United States automatically becomes
a citizen of the United States when all the following conditions
have been fulfilled:
(1) At least
one parent of the child is a citizen of the United States, whether
by birth or naturalization.
(2) The child
is under the age of eighteen years.
(3) The child
is residing in the United States in the legal and physical custody
of the citizen parent pursuant to a lawful admission for permanent
residence.
(b) Subsection
(a) shall apply to a child adopted by a United States citizen
parent if the child satisfies the requirements applicable to adopted
children under section 1101 (b)(1) of this title.” INA §320,
8 U.S.C §1431.
B. Applicability
1. INA §320
is only effective for children who meet eligibility under the section
as of February 27, 2001.
C. Eligibility
1. A child (natural
or adopted) born outside the United States automatically becomes
a citizen of the United States when all of the following conditions
have been fulfilled:
(a) At least
one of the child’s parents is a citizen of the U.S., whether
by birth or naturalization; AND
(b) The child
is under the age of 18 years; AND
(c) The child
is residing in the U.S. in the legal and physical custody of the
citizen parent pursuant to a lawful admission for permanent residence.
D. Documentation
of Citizenship: Certificate of Citizenship or Passport
1. When the conditions
of INA §320 are met, a child is automatically a citizen and
no further action needs to be taken to make the child a citizen. However, if proof of citizenship is desired, it can be documented
in two manners: (a)
Certificate of Citizenship or (b) Passport. See 22 U.S.C.
§2705.
(a) Application
Process for Certificate of Citizenship
(1) Natural Child
File N-600, Application
for Certificate of Citizenship, with USCIS office in the United
States having jurisdiction.
(2) Adopted Child
File N-643, Application
for Certificate of Citizenship on behalf of an Adopted Child,
with USCIS office in the United States having jurisdiction.
(3) Upon approval, single A Certificate of Citizenship is issued.
(b) Application
Process for Passport
(1) Passport
Agency
May file DSP-11, Application
for Passport, at any Passport Agency. Most Passport Agencies
now accept applications only by appointment. To schedule
an appointment for the Miami Passport Agency, call 305-539-3600.
(2) Select Post
Offices
May also file DSP-11 at select Post Offices. Not all Post
Offices accept applications.
(3) U.S. Consular
Office
If abroad, file DSP-11 at a U.S. Consulate or Embassy.
(4) Effective
July 2, 2001, a person applying for a passport for a child under
14 must demonstrate that both parents consent to the issuance
of a passport to the child or that the applying parent has sole
authority to obtain the passport.
III. Repealed by the CCA
A. Repealed Law
1. INA §321,
8 U.S.C. §1432
B. Applicability
of Repealed Law
1. Even though
INA §321 has been repealed, those individuals who derived U.S.
citizenship under this section prior to February 27, 2001 remain
U.S. citizens.
C. Eligibility
1. A foreign-born
child (natural or adopted), born to alien parents, or to an alien
parent and a citizen parent who has subsequently lost citizenship
of the U.S. becomes a citizen upon fulfillment of the following
conditions:
(a) Both parents
naturalize; OR
(b) The surviving
parent naturalizes; OR
(c) The parent
having legal custody of the child naturalizes; AND
(d) The alien
parent’s naturalization takes place while the child is under
18; AND
(e) The child
is living in the U.S. as an LPR at the time of the alien parent’s
naturalization or thereafter while the child is under 18.
D. Documentation
of Citizenship: Certificate of Citizenship or Passport
1. In circumstances
where the conditions of INA §321 were met, the child was automatically
a citizen and no further action needed to be taken. However,
if proof of citizenship is desired, it can be documented at any
time in the same manner as described in II.D. of this outline.
See 22 U.S.C. §2705.
IV. Children Born and
Residing Outside the United States; Conditions Under Which Citizenship
Acquired by Issuance of a Certificate of Citizenship
A. CCA
1. “(a) A
parent who is a citizen of the United States may apply for naturalization
on behalf of a child born outside of the United States who has not
acquired citizenship automatically under section 320. The
Attorney General shall issue a certificate of citizenship to such
parent upon proof, to the satisfaction of the Attorney General,
that the following conditions have been fulfilled:
(1) At least
one parent is a citizen of the United States, whether by birth
or naturalization.
(2) The United
States citizen parent [prior to application]-
(A) has been
physically present in the United States or its outlying possessions
for a period or periods totaling not less than five years, at
least two of which were after attaining the age of fourteen
years; or
(B) has a citizen
parent who has been physically present in the United States
or its outlying possessions for a period or periods totaling
not less than five years, at least two of which were after attaining
the age of fourteen years.
(3) The child
is under the age of eighteen years.
(4) The child
is residing outside of the United States in the legal and physical
custody of the citizen parent, is temporarily present in the United
States pursuant to a lawful admission, and is maintaining such
lawful status.
(b) Upon approval
of the application (which may be filed from abroad), and, except
as provided in the last sentence of section 337(a), upon taking
and subscribing before an officer of the Service within the United
States to the oath of allegiance required by this Act of an applicant
for naturalization, the child shall become a citizen of the United
States and shall be furnished by the Attorney General with a certificate
of citizenship.
(c) Subsections
(a) and (b) shall apply to a child adopted by a United States
citizen parent if the child satisfies the requirements applicable
to adopted children under section 101 (b)(1).” INA §322,
8 U.S.C. §1433.
B. Eligibility
1. A child (natural or
adopted) born outside the United States becomes a citizen of the
United States through naturalization when:
(a) At least one
parent is a U.S. citizen by birth or naturalization;
(b) The child is
under age 18;
(c) The child is
residing outside the U.S. in the legal and physical custody of the
citizen parent, is temporarily present in the U.S. pursuant to a
lawful admission, and is maintaining such lawful status.
(d) The U.S. citizen
parent prior to application:
(1) Has been
physically present in the U.S. or its outlying possessions for
a period or periods totaling not less than 5 years, at least 2
of which were after attaining the age of 14 years; or
(2) Has a citizen
parent who has been physically present in the U.S. or its outlying
possessions for a period or periods totaling not less than 5 years,
at least 2 of which were after attaining the age of 14 years.
C. Application Process
1. When eligibility
is established under INA §322, but not under INA §320, the
parent must apply to naturalize the child with USCIS as the child is
not automatically a citizen.
(a) Applications
for Certificate of Citizenship
(1) Natural Child
File an N-600, Application
for Certificate of Citizenship, with any USCIS office in the U.S.
that adjudicates applications.
(2) Adopted Child
File an N-643, Application
for Certificate of Citizenship on behalf of an adopted child, with
any USCIS office in the U.S. that adjudicates applications.
(3) Eligibility
Based on Citizen Grandparent’s Physical Presence in the United
States
Attach a completed N-600/N-643,
Supplement A, to the N-600 or the N-643.
(4) Preliminary
Review of Application
Upon receipt, USCIS preliminarily
reviews the application.
(i) Application
not preliminarily approvable-
Application is rejected
or a request for additional information is sent.
(ii) Application
preliminarily approvable-
A G-56, General Call-In
Letter, is sent. The following will be on the G-56, “N-600/N-643
has been preliminarily approved.”
(5) Expedited Treatment
for Application
(i) Immediate
priority is given to child approaching 18th birthday.
(6) Interview
(i)Child and parent
must be physically present at the interview.
(ii) Upon approval
and administration of the oath, a singe A certificate issued.
(iii) Date of
citizenship is the (a) date the application is approved and (b)
the oath of allegiance is taken and subscribed to before the USCIS officer. Both (a) and (b) must be completed before child’s
18th birthday.
V. Summary
A. Children who are
less than 18 years of age and have at least one parent who is
a U.S. citizen, whether by birth or by naturalization, will benefit
from the CCA. Under the CCA, which became effective February
27, 2001, qualifying children who immigrate to the United States and
reside with a U.S. parent automatically acquire U.S. citizenship;
children who live abroad acquire citizenship by application.
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