Why and Getting Proof of Citizenship

LAW OFFICE OF C.J. LYFORD PMB
141 12 West Willow Grove Avenue Philadelphia, PA 19118-3952
Telephone 215-247-3888
E-mail lyfordesq@aol.com 
Fax 215-247-4722

Practicing in the areas of Immigration/Citizenship/Visa Law and International Adoption Law

WHY AND HOW TO GET PROOF OF U.S. CITIZENSHIP UNDER THE CHILD CITIZENSHIP ACT FOR YOUR FOREIGN - BORN ADOPTED CHILD?

By C.J. Lyford, Esq.* April 15, 2004 (rev.)1

The Child Citizenship Act of 2000 (CCA)1a provides for the "automatic" acquisition of U.S. citizenship to many children (adopted and not adopted) of U.S. citizens who are born abroad, provided that certain qualifications are met.2 As a result, many foreign-born children who have been adopted by U.S. citizens have automatically become citizens, without the need to apply for citizenship. For children adopted in the future, many will also automatically become U.S. citizens under the Act.3

1. WILL YOUR CHILD AUTOMATICALLY RECEIVE PROOF OF HIS OR HER U.S. CITIZENSHIP?

It depends. As a result of new program, referred to as the "CCA Program," if your child entered the United States after a "full and final" adoption abroad on an IR3 classified visa (See comment number 8 that discusses the IR3 and IR4 visa distinction) on or after January 20, 2004, your child will be issued a Certificate of Citizenship automatically, at no charge.3a However if your child entered the United States before January 2004, or on an IR4 visa, you will still have to apply for a Certificate of Citizenship from the U.S. Department of Citizenship and Immigration Services (USCIS, previously the INS; see comment 4 below) or obtain a U.S. passport from the Department of State, Office of Passport Services, to document your child's citizenship.

The following comments are directed at why and how to obtain proof of citizenship for your child." 4

2. Do you have to obtain proof of U.S. citizenship for your child?

No. You are not required to get proof. As emphasized by the USCIS and elsewhere, if your child meets the requirements of the CCA, he or she is a U.S. citizen "automatically", that is, without any further action on your part, and is entitled to all the benefits of being a U.S. citizen, whether or not you ever obtain proof of the citizenship.

3. Is it a good idea to obtain proof of your child's U.S. citizenship?

Yes and I strongly recommend it! Having this clear and tangible proof 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 that he or she is a U.S. citizen. Indeed, despite the CCA, many Social Security Offices require a Certificate of Citizenship or U.S. Passport before they will classify your child as a U.S. citizen in their system.4b Furthermore, there will be no doubt that your child has met all of the requirements under the CCA and indeed is a U.S. citizen.

4. By the way, what has happened to the INS? What is the BCIS or USCIS?

As most of you probably know, as of March 1, 2003, most of the INS functions were transferred to a new department, the "Department of Homeland Security" (DHS), and the "INS" no longer exists. Most of the immigrant service functions such as immigrant visa petitions (e.g., I-600 Orphan Petitions)), citizenship, etc., will be handled by the new U.S. Department of Citizenship and Immigration Services (USCIS).4a For the moment many addresses, etc., have remained the same but be prepared for changes.

5. Have there been any other recent changes related to the procedure for obtaining proof of citizenship?

Yes, there has been a change in the form to be used to request a Certificate of Citizenship. The form to be used to apply for a Certificate of Citizenship for a foreign born adopted or biological child is the N-600.5 This has replaced the N-643, the form that was previously used to request a Certificate of Citizenship on behalf of a child through adoption. The information requested in the revised N-600 is very similar to the old N-643 form. Note also that not all of the USCIS and related government forms and publications have been revised to accurately reflect the use of the new form.

In addition, as of April 30, 2004, there will be an increase in the USCIS filing fee by about $55 for various petitions and applications. The fee for the N-600 and the N-600K Applications for a Certificate of Citizenship for an adopted child, will be increased from $145 to $200. For your information, the Orphan Petition I-600A/I-600 fee will be increased to $525.5a

6. How do you get proof that your child is a citizen?

For the moment you have two choices:

a) Complete the revised Form N-600 to obtain a Certificate of Citizenship (See endnote 5 and comment 10 within) and/or b) Obtain a U.S. passport for your child. (See comment 11 within.)

7. Which type of proof of citizenship should you obtain?

The Certificate of Citizenship 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 U.S. citizen to prove U.S. citizenship. Unfortunately the USCIS response time for issuing a Certificate has been very slow. The passport can usually be obtained fairly quickly. (But see comment 12 below.) If at all possible, start the process for both. You can then wait for the USCIS to provide the Certificate of Citizenship.

8. What is the difference between an IR3 classification visa and an IR4 classification visa and why does it matter?

If your child is issued a visa with an IR3 classification7 ("Immediate Relative -- Orphan Adopted Abroad by U.S. Citizen"), he or she will automatically become a U.S. citizen under the CCA upon entering the U.S., assuming the other qualifications are met. (See endnote 2)

However, if the adoption was not completed abroad or considered "final", either by the country abroad, or U.S. immigration, the child will enter the U.S. on an "IR4" classification visa. ("Immediate Relative - Orphan to be Adopted in the United States by U.S. Citizen."). If so, additional action will have to be taken for the child to become a U.S. citizen.8 An IR4 visa is issued in two types of situations.

The first 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. 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 U.S. citizen as of that date.

The second situation in which a child is issued an IR4 visa 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. An IR4 visa is issued in this situation because the INS has interpreted the Immigration and Nationality Act (INA) as requiring that both parents, or the sole parent, as applicable, see the child before or during the adoption abroad in order for the adoption to be "final" under the INA9 and the child eligible for U.S. citizenship In order for the adoption to be final for purposes of citizenship, the INS has generally required a readoption of the child in a U.S. state court. 10 The INS interim regulations regarding the implementation of the CCA (see reference number 2 in endnote 4) indicate however that the INS may "waive" the readoption requirement if the applicable state "recognizes the foreign adoption as full and final under that state's adoption laws."11 Unfortunately, the USCIS has been ambiguous about what type of "proof" or "evidence" of state "recognition" will be sufficient for the waiver. As a result, absent a written state law that specifically provides for recognition of a foreign decree, or a procedure for court recognition, it is not clear what kind of evidence of recognition will be sufficient for a waiver.12

Until more information is available about what kind of proof of recognition will be required for a waiver and how the USCIS will be implementing the regulations in practice, caution is advised. Most professionals still recommend a readoption in this 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 Certificate of Citizenship 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.

9. Can a birth certificate issued by a U.S. state for a foreign born child of a U.S. citizen parent or parents serve as proof of the child's U.S. citizenship?

No. While you may have obtained a birth certificate for your child issued from a U.S. state as a result of readoption, registering the foreign adoption, etc., your child was not born in the U.S. Only the birth certificate of an individual born in the U.S. or one of its territories, can serve as proof of U.S. citizenship for that individual.

10. What documents do you have to submit with the N-600 Application for a Certificate of Citizenship?

· If your child entered on an IR3 visa, 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. As a result, you should only need to submit the filing fee13 and the required photographs. There are however reports that some USCIS offices are requiring copies of all documents even if they are already in their file. As a result, you may save time in the long run by submitting copies of all of the documents requested in the N-600 instructions and application. (See endnote 5)

· If your child entered the U.S. on IR4 visa because the adoption was not completed abroad, etc., you should submit a copy of the final adoption decree from the state court of your residence, along with the documents discussed above.

· If your child entered on an IR4 visa because you or your or your spouse, as applicable, did not see the child before or during the adoption, and you have readopted, you should also submit a copy of the adoption decree issued by your state court. If you have chosen not to readopt, you should provide the USCIS with "proof" that your state recognizes the adoption, and request that the readoption requirement be waived. (See comment number 8 within.)

· If you have changed your child's name through readoption, etc., and want the Certificate to be issued in the new name, request this and enclose a copy of the adoption decree or the court order regarding the name change.

· Regarding the three identical photographs of your child, the instructions to the N-600 contain very specific requirements about the size, background, etc., that you should be reviewed before the photograph is taken. Note that this is the picture that will go on your child's Certificate of Citizenship.

· The fee (see endnote 13 regarding the April 30, 2004) should be paid by certified check or money order made payable to the U.S. Citizenship and Immigration Services. You should mail the submission, by federal express or US postal mail, return receipt requested, to the USCIS District Office with jurisdiction over your place of residence.13a

11. What is needed to obtain a U.S. Passport from the State Department?14

· Evidence of a full and final adoption through submission of a "certified copy of a final adoption decree." In practice, most passport offices require that the parent submit the "original" of the foreign adoption decree, with the English translation,15 or if the adoption was finalized in the U.S., or the child readopted, a certified copy of the final adoption decree from the state court;

· Evidence that the child entered the U.S. as a legal permanent resident. This can be shown through producing either the child's permanent resident alien card or the child's foreign country passport with the I-551 stamp;

· Valid parent ID, for example, a driver's license;

· Evidence of U.S. citizenship of at least one of the parents, for example: a birth certificate showing that a parent was born in the U.S., a parent's U.S. Passport, or a parent's Certificate of Naturalization, if the parent is a naturalized U.S. citizen.

· The parent(s) should also bring a certified copy of the child's birth certificate, with a certified translation as applicable, to confirm the child's age.

· Your child must appear in person when you are applying for the passport.16

12. Is a Certificate of Citizenship required before you can obtain a U.S. Passport for your child?

According to the State Department Fact Sheet (See number 5 in footnote 4) you are not required to obtain a Certificate of Citizenship in order to obtain a Passport. However some offices are nevertheless requiring a Certificate before they accept the application. If unsuccessful, you should try another designated office that accepts Passport applications.

13. Is it possible the USCIS may eventually provide Certificates of Citizenship or other proof of citizenship to children who do not qualify under the new "CCA Program?"

Yes. The USCIS states in its publication " Child Citizenship Act Program Facts" at: http://uscis.gov/graphics/services/natz/CCAFacts_Jan_04.pdf that "Once the new IR-3 entrant program is established, the USCIS will expand the program to address other Immediate Relative visa cases so that additional children benefit from the CCA changes. Key elements to be addressed include development of a streamlined procedure for IR3 children who have already been admitted to the U.S. but have not filed the [Form N-600] for evidence of citizenship and families who fall within other visa categories. "

So it may happen, but it will likely be a long wait. In the interim, your child will not have proof of his or her U.S. citizenship unless you apply for a Certificate of Citizenship or a U.S. passport. ______________________________ 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.

If you have any questions about the Child Citizenship Act of 2000 or other issues involving international adoption, immigration or citizenship, 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 9-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 INS/BCIS or consulate visa issues or problems that issues in a specific adoption situation. I also handle domestic adoptions, adoption finalizations and readoptions in the Commonwealth of Pennsylvania. 

C.J. Lyford, Esquire 215-247-3888 (telephone) 
215-247-4722 (fax) lyfordesq@aol.com

*Member of the American Immigration Lawyers Association