WHY YOUR FOREIGN-BORN ADOPTED CHILD SHOULD HAVE PROOF OF U.S. CITIZENSHIP AND HOW TO GET THIS PROOF

By C.J. Lyford, Esq.*

Jan 3, 2009 (rev.) Note1

Last Revised: 3/2/09

As a result of the Child Citizenship Act of 2000 (CCA), many foreign born children by adoption who reside in the U.S. have or will become U.S. citizens under the CCA either when they enter the U.S. or when they are readopted or their adoption finalized in the U.S.Note 1

1. . WHO IS ELIGIBLE FOR CITIZENSHIP UNDER THE CCA?

   The Child Citizenship Act of 2000 (CCA) provides for the "automatic" acquisition, that is acquisition as a matter of law, of U.S. citizenship to many foreign born children (adopted and not adopted) of U.S. citizens, provided that the following qualifications are met: 1) at least one parent of the child is a U.S. Citizen (USC), 2) the child is under the age of eighteen years when he or she enters the U.S.; or was under the age of 18 at the time of the effective date of the CCA (that is, February 27, 2001)Note 2, 3) the child is residing in the U.S. in the legal and physical custody of the USC parent pursuant to a lawful admission for permanent residenceNote 1a, and; 4) if adopted, the adoption must be "final", under the laws of the foreign country and U.S. immigration.

2. WHAT DO THE VISA CLASSIFICATIONS IR3 AND IR4 MEAN?Note 2a,

   Basically, if the adoption abroad was final under the laws of the foreign country and U.S. immigration, your child will be issued an "IR3" classified immigration visa ("Immediate Relative -- Orphan Adopted Abroad by USC.") to immigrate to the U.S. However, if the adoption was not completed abroad or considered "final", either by the country abroad, or by U.S. immigration (because the child was not visited by the sole or both parents before or during the adoption abroad), the child will enter the U.S. on an "IR4" classified visa.Note 2b,("Immediate Relative - Orphan to be Adopted in the U.S. by a USC."). If so, additional action will have to be taken for the child to become a USC.

   If they otherwise qualify under the CCA, most children who immigrate on an "IR3" visa automatically become USC's when they enter the U.S. (but see Note 1a and Note 2). If they immigrated or will immigrate on an "IR4" visa, they will not become U.S. citizens until the adoption is finalized or readopted, as applicable, in a U.S. State court.

3. WHAT IF YOUR CHILD IS ADOPTED UNDER THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTIONS (HAGUE CONVENTION)?

   As of April 1, 2008, the U.S. Intercountry Adoption Act of 2000 (IAA) and regulations issued as a result of the Hague Convention govern adoptions between the U.S. and other "Convention Countries" such as China, Guatemala, India, Mexico, Philippines and Thailand.Note 3, Note 3a Amongst many things, adoptions under the Hague Convention will involve additional U.S. visa classifications, the "IH3", for adoptions that are final abroad and "IH4" for adoptions that will be completed in the U.S. Those that enter on an "IH4" visa, will not be USC's until the adoption is finalized in the U.S.

   Of special note is that the requirement that the sole or both parents visit the child before or during the adoption abroad has been eliminated under the Hague Convention. Therefore, as long as the adoption is final abroad, an "IH3" visa should be issued.

4. WILL YOUR CHILD AUTOMATICALLY RECEIVE ANY OFFICIAL DOCUMENTATION OF HIS OR HER U.S. CITIZENSHIP?

   It depends. Basically, since January 2004, children who enter the United States on an "IR3", or now on an "IH3" visa as a result of the Hague Convention, and who otherwise qualify under the CCA, will receive a Certificate of Citizenship (COC) from the CIS in the mail.Note 3b However if your child entered the United States before January 2004, or entered or will enter on an "IR4" or an "IH4" visa, he or she will not receive a COC and will have to apply for one from the USCIS when the qualifications are met.

5. DO YOU HAVE TO OBTAIN A COC OR USP TO PROVE U.S. CITIZENSHIP FOR YOUR CHILD?

   No. You are not required to get an official document that proves your child's citizenship. Once the qualifications are met, your child becomes a USC without any further action on your part, and is entitled to all the benefits of being a USC whether or not you ever obtain a document that proves U.S. citizenship.

6. SHOULD YOU OBTAIN DOCUMENTARY PROOF OF YOUR CHILD'S U.S. CITIZENSHIP?

   Yes and I strongly recommend it. Here are some reasons why you should do this.

   • Having a right or entitlement to something is only half the battle. The other half is to be able to prove the entitlement when necessary or if it is challenged. When an individual is not born in the U.S., the question of whether the individual is a USC will inevitably, and sometimes repeatedly, be raised at some point. Even if your child has become a USC under the CCA as a matter of law, and would ultimately prevail on this issue if it were challenged, you or your child will still be faced with the problem of having to convince others that he or she is a USC. Having clear and tangible evidence immediately on hand will save you and/or your child from having to produce numerous documents, and probably having to re-explain the CCA, every time it is necessary to prove citizenship.
   • More and more situations are requiring that a person be able to supply a document proving that he or she is a USC or is in the U.S. in lawful status. For example, Social Security Offices require proof of U.S. citizenship before they will classify your child as a USC in their system.Note 4 Proof of U.S. citizenship is now required or being proposed as a requirement in other contexts, for example, to show eligibility for Medicaid, eligibility to vote, etc. Proof of U.S. citizenship or lawful immigration status is required to comply with employment eligibility verification, and in some states, to obtain a state driver's license.
   • For adult foreign born individuals who become USC's through naturalization, the Certificate of Naturalization is issued to them as documentation of citizenship. Your child should have similar documentation.
   • Finally, once you have obtained the proof of citizenship, there will be no doubt that your child has met all of the requirements under the CCA and indeed is a USC.
7. 7. WHY CAN'T YOU USE YOUR CHILD'S U.S. STATE-ISSUED BIRTH CERTIFICATE TO PROVE U.S. CITIZENSHIP?

   Your child was not born in the U.S. Only the birth certificate of an individual born in the U.S. or in certain territories can serve as proof of U.S. citizenship for that individual.

8. . HOW DO YOU GET PROOF THAT YOUR CHILD IS A CITIZEN?

   You have two choices:
   a) Obtain a COC by filing the N-600 Application and/or
   b) Obtain a U.S. Passport (USP). .

9. WHICH TYPE OF PROOF OF CITIZENSHIP SHOULD YOU OBTAIN?

   Under U.S. law, U.S. citizenship can be proven through a COC or a USP.Note 4a However, I recommend that you get both. The COC is advantageous because it is universally recognized, only one-page long and does not need to be renewed. It is very similar to the one page Certificate of Naturalization that is used by a naturalized USC to prove U.S. citizenship. Unfortunately the USCIS response time for issuing a COC after the application has been submitted has been very slow. The Passport can usually be obtained fairly quickly and will be necessary if you travel outside of the United States with your child. (See comment below.) If at all possible, start the process for both. You can then wait for the CIS to provide the COC. Note 5

10. HOW DO YOU OBTAIN A COC?

    You can obtain the COC by submitting the Form N-600 Application to the USCIS District Office with jurisdiction over your residence in the U.S. Information and the form can be obtained through the USCIS website.

11. WHAT IS THE COST FOR A COC?

    The fee for the N-600 (and the N-600K) Application on behalf of an adopted child is $420. ($460 is the fee for a foreign born biological child.)

12. WHAT DOCUMENTS DO YOU HAVE TO SUBMIT WITH THE N-600 APPLICATION?
    • A copy of the adoption decree issued from the state court where you finalize the adoption, the filing fee and the required two photographs.
    • If you change your child's name as part of the U.S. state adoption finalization, state the new name in Part 1 A of the Application and indicate that the name was changed pursuant to the adoption decree.
    • Most of the USCIS publications state that you do not need to submit documents that it already has in its file, such as your child's foreign birth certificate, etc., unless requested specifically by the USCIS.
    • You only need to submit copies of the documents. Do not submit originals unless you are specifically asked to.
    • The fee should be paid by certified check or money order. You should send the submission through a delivery service that can be tracked, for example, Federal Express.
13. WHAT IS NEEDED TO OBTAIN A U.S. PASSPORT?
    • " A certified copy of the foreign country adoption decree, along with a certified English translation if not in English, and/or a U.S. state-issued adoption decree.
    • " Evidence that your child entered the U.S. as a lawful permanent resident. This can be shown through producing either the child's lawful permanent resident alien card or the child's foreign country passport with the I-551 stamp indicating the immigration visa classification, for example, "IR4".
    • " Your child's COC if your child has one.
    • " Proof of the requesting parent's identification, for example, a driver's license.
    • " Evidence of U.S. citizenship of at least one of the parents, for example: a birth certificate showing birth in the U.S., a U.S. Passport, a Certificate of Naturalization, if a naturalized USC or a COC.
    • " You should also bring a certified copy of your child's birth certificate, along with the certified translation if it is not in English, to confirm your child's age.
    • " You may be required to submit original or certified copies of various documents that will not returned until after the Passport is processed.
    • " Your child must appear in person when you are applying for the passport.

14. IS A COC REQUIRED BEFORE YOU CAN OBTAIN A USP FOR YOUR CHILD?

    You should not have to obtain a COC before you can obtain a USP and the current information sheet from the Department of State website regarding the CCA is in accord. However the Department of State website regarding what documents are required to obtain a USP indicates otherwise. Because of this conflict, some offices are requiring a COC before they accept the USP application. If unsuccessful, you should try another designated office that accepts Passport applications. Some are more knowledgeable than others..

15. DOES YOUR CHILD NEED A USP TO TRAVEL OUTSIDE OF THE UNITED STATES ONCE HE OR SHE BECOMES A USC?

    Yes. Once your child becomes a USC he or she should enter and leave the U.S. on a USP.

16. FINALLY, MAKE SURE THAT YOUR CHILD UNDERSTANDS THAT HE OR SHE IS A USC AND WHAT THIS MEANS.

    You should tell your child that while he or she was born outside of the U.S., he or she is a USC under U.S. law. Explain what it means to be a citizen. I am surprised at the number of teenage adoptees who either do not know or understand this. You should also mention that sometimes U.S. citizenship may be questioned. Show the COC and/or USP to your child so that he or she knows that you have proof of citizenship should the need arise. Do not forget to tell your child or a responsible adult where the documents are kept.

Please note that these are general comments and are not intended to be comprehensive. They are not legal advice nor should they be relied upon as legal advice. They are based on various publications and information that were found on the USCIS and DOS websites and related sourcesNote 6, and my experience.

If you have any questions about the CCA, other issues involving adoption, or general immigration questions, feel free to contact me. I am an attorney with a private practice in the areas of immigration/citizenship law and adoption of foreign-born children adopted abroad or domestically, as well as the mother of a 14 year-old child adopted from China in 1994. I provide legal services and consultations to parents and agencies throughout the United States and abroad to address U.S. immigration problems (NOID's or I-600 denials), as well as handle general immigration matters. I also handle domestic adoptions, relative adoptions, stepparent adoptions, second parent adoptions, adoption finalizations and readoptions in Pennsylvania.

LAW OFFICE OF C.J. LYFORD
Telephone 215-836-4628
E-mail lyfordesq@comcast.net
Fax 215-836-4629
* Member of the American Immigration Lawyers Association

NOTES

Note 1 Public Law No. 106-395. See also Immigration and Nationality Act ("INA") sections 320, 322 and 341.

Note 2 Unfortunately, the CCA does not apply if the child was 18 or older on February 21, 2001 or if the child entered or will enter the U.S. after turning 18 years of age. In this situation, the child will have to acquire U.S. citizenship through the N-400 naturalization process. Until your child becomes a USC, he or she may be subject to adverse CIS action if involved in criminal or certain other activities. An immigration attorney should also be contacted before the application for naturalization is filed to evaluate any potential risks from this action.

Note 1aUnfortunately, the CCA does not apply if the child was 18 or older on February 21, 2001 or if the child entered or will enter the U.S. after turning 18 years of age. In this situation, the child will have to acquire U.S. citizenship through the N-400 naturalization process. Until your child becomes a USC, he or she may be subject to adverse CIS action if involved in criminal or certain other activities. An immigration attorney should also be contacted before the application for naturalization is filed to evaluate any potential risks from this action.

Note 2a IYou can determine what classification of visa your child was issued by looking at the I-551 visa stamp in your child's foreign country passport.

Note 2b The first IR4 situation arises because there has been no adoption proceeding abroad, when the adoption is not completed abroad and/or the adoption is not considered final by the foreign country. This is often seen in adoptions of children from India or Korea in which only a guardianship or custodial relationship is established between the child and parent(s) or the child and the agency. Adoptions from Thailand are also not usually final in Thailand. In this situation, an adoption must take place in the U.S. according to the law of the applicable U.S. state court where the parents, or sole parent, as applicable, reside, or where the court otherwise has jurisdiction. This is frequently referred to as an adoption "finalization". Once the adoption is "finalized", the child automatically becomes a USC as of that date.
The second IR4 situation is when both parents, or the sole parent, as applicable, did not see the child before or during the adoption abroad, even if the foreign adoption was considered final under the law of the foreign country where the adoption took place. This is sometimes referred to as a proxy adoption In order for the adoption to be final for purposes of citizenship, the CIS has generally required a readoption of the child in a U.S. state court. The readoption requirement may be waived if evidence is provided to the USCIS that the applicable state "recognizes" the foreign adoption as full and final under that state's adoption laws. Most professionals still recommend a readoption in this IR4 situation rather than risk uncertainty regarding a child's citizenship, and I agree. However, should you decide not to readopt because your state recognizes foreign adoptions as valid under its law, do not assume that your child is a citizen. Make sure that you take the next step and obtain a COC to confirm that the USCIS has accepted the proof of state recognition that you have submitted and has waived the readoption requirement. Otherwise, and not until then, will you be certain that your child has acquired U.S. citizenship.

Note 3 The Hague convention will cover adoptions after April 1, 2008, unless it falls within the transition guidelines, for example, the I-600A was filed before April 1, 2008. Please refer to the CIS and Department of State websites re the Hague Convention. (See, for example, the CIS website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=beb46faedb8f8110VgnVCM1000004718190aRCRD&vgnextchannel=f3beaca797e63110VgnVCM1000004718190aRCRD; and DOS website at: http://travel.state.gov/family/adoption/convention/convention_462.html, http://travel.state.gov/family/adoption/info/info_457.html

Note 3a Examples of countries that are not Hague Countries are Ethiopia, Haiti, Kazakhstan, South Korea, Russia, Taiwan and Ukraine. See the above Department of State website for a complete list.

Note 3b The COC will be issued in the name on your child's visa. If your child's name is changed through readoption, etc., a replacement COC can be obtained through the N-565 form at the CIS website. The cost is $360.

Note 3c .

Note 4 After you get the COC or USP go back to the Social Security Office with the proof of citizenship to be sure that the Social Security records accurately reflect that your child is a USC.

Note 4a 22 U.S.C.A. sec. 2705. However, even if under U.S. law, both documents are proof of U.S. citizenship, this does not mean that either has to or will be accepted as such, particularly abroad. For example, I have received occasional reports from families that a U.S. Passport was not accepted abroad by foreign country consulates in various situations because of the potential of document fraud. While this should not occur, it further supports the recommendation that both documents be obtained and carried abroad.

Note 6 Unfortunately, the USCIS and Department of State websites have repeatedly and frequently been revised so that referencing back to certain explanatory documents that were previously available on line in the past is difficult and sometimes impossible.

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