Citizenship for Adopted Children

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The Child Citizenship Act (“CCA”) provided for the automatic acquisition of citizenship for certain foreign-born adoptive children of United States citizens.

The Child Citizenship Act (“CCA”) signed by President Clinton in October last year, is in effect as of February 27, 2001. The law provided for the automatic acquisition of citizenship for certain foreign-born adoptive children of United States citizens and allows for others not meeting the requirements for automatic citizenship to apply for a certificate of citizenship. Although the INS has yet to issue implementing regulations for the filing of certificates of citizenship under the CCA, qualified applicants may seek a United States passport for the State Department’s passport Agency to obtain proof of citizenship.

Since the United States Immigration Law was first established, there have been provisions for the acquisition of United States citizenship by foreign-born children of United States citizen parents. These laws have been amended many times over the years; however, the date of the child’s birth controls as to what law must be looked at to determine whether a particular foreign-born child acquired citizenship at birth. Additionally, the law allows for children of United States citizens to “derive” citizenship upon the naturalization of one or both of their United States Citizen parents. These issues can be quite complex, such that questions of eligibility should only be addressed to a competent immigration attorney, whose understanding of the law is apparent from an initial consultation. Unfortunately, these laws at times seem arbitrary and unfair, resulting in seemingly identical cases having opposite outcomes.

In order to ease some of these difficulties, CCA provides that an adopted foreign-born child automatically becomes a Citizen when (1) at least one parent is a citizen, by birth or naturalization; (2) the child is under 18; (3) there is a full and final adoption of the child; and (4) the child is admitted to the U.S. as a lawful permanent resident (“green card holder”). The operative date for the automatic acquisition of citizenship is the date on which the child is admitted for lawful permanent residence.

If the adopted child does not meet the requirements for “automatic” citizenship, the child’s parents may apply for naturalization on behalf of their child if (1) at least one parent is a citizen, either by birth or naturalization; (2) the citizen parent has been physically present in the United States for at least five years, two of which were after attaining the age of 14, or the U.S. citizen parent has a United States citizen parent who has been physically present in the US for at least five years including two years after attaining the age of 14 years; (3) the child is under the age of 18; (4) the child is residing outside of the United States in the legal and physical custody of the citizen parent, or the child is temporarily in the United States pursuant to a lawful admission and is maintaining lawful status.

To be eligible for a certificate of citizenship under this rule, the child must have been adopted prior to reaching the age of 16 and must have must have been in the adoptive parents physical and legal custody for a period of at least two years.

The INS has promised to work to “streamline and reengineer” the process for obtaining a certificate of citizenship, which can take many months. Unfortunately, it may take several months for the new procedures to be finalized through new regulations and INS policy memoranda. In the meantime, at least those children eligible for automatic citizenship may apply directly for US passports with the State Department to obtain proof of citizenship.

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