A foreign born child may have a claim to U.S. citizenship because of a U.S. born parent or naturalized parent. This can be important especially for someone who is deportable for entry without a visa or because of the commission of an aggravated felony. A U.S. citizen cannot be deported. Before 2001 an under 18 year old child born abroad had the right to citizenship if one parent was naturalized and the child had obtained permanent residence before the child became 18 and was in the parent’s legal custody.
Citizenship was also available for a child if both parents had naturalized or if one parent had died, and the surviving parent had naturalized while the child was under 18. If a single parent had been granted legal custody of the child when he/she was under the age of 18 by a Court or if an unmarried mother was naturalized before the child reached 18 and the child had entered the U.S. legally, citizenship would be granted.
CHILD CITIZENSHIP ACT
Since February 27, 2001, The Child Citizenship Act confers automatic citizenship to a child under the age of 18 when:
1. One parent is a U.S. citizen, regardless of whether the parent was born in the U.S. or naturalized;
2. The child is under 18;
3. The child has been admitted as a permanent resident or was lawfully admitted, e.g. as a visitor;
4. The child is residing in the U.S. and is in the legal and physical custody of the citizen parent.
This rule is applicable as well to adopted children. Hence prior orphaned children adopted abroad become U.S. citizen upon being legally admitted to the U.S.
Step children are not included in the definition of a child for purposes of citizenship. If a child meets the required qualifications, a certificate of citizenship and U.S. passport will be granted immediately.
CERTIFICATE OF CITIZENSHIP
Children born abroad who did not obtain U.S. citizenship through the naturalization of a parent(s) may still apply for a Certificate of Citizenship based on the following:
1. One parent is a citizen;
2. The child has been temporally admitted to the U.S. (as a visitor, for example) and is in status;
3. The child is under 18;
4. The child is permanently residing outside the U.S. in the legal and physical custody of the U.S. citizen parent;
5. This parent has lived in the U.S. for 5 years, two of which were after the age of 14.
This last requirement is waived if this parent is in the U.S. military and is stationed abroad. If the parent has died within 5 years of filing the application, it will be approved nonetheless if there is a U.S. grandparent or legal U.S. guardian. If a child was adopted, the adoption must have taken place before the child became 16, unless this child has an adopted sibling and then this child may qualify if adopted before the age of 18.
If a U.S. parent had not been physically present for five years, two of which were after the parent’s 14th birthday, a U.S. grandparent who has been physically present in the U.S. for 5 years, two of which were after the grandparent’s 14ht birthday may enable the child to receive citizenship. The child may receive I.S. citizenship even if the grandparent has died, provided proof may be submitted proving the physical presence of the grandparent for the required period.
If you need help or advise, call us at 212-944-9420.