Child citizenship qualification

[hwan]

Hello friends,

I need your opinions on my girlfriend's situation. Her father was naturalized in 2000 when she was 14 years old. She immigrated (green card) to the US in 2004 to re-unite with her father and was 17 years old at the time. Does this mean she automatically became a citizen by the time she arrived in the US since she was under 18 and her father was a US citizen when she arrived? How can she find out for sure if she qualifies before shelling out $460 for the citizenship certificate?

Thank you in advance

 

[Huracan]

Hi hwan,

The way you're laying out things, and the timeline it seems she is most likely a citizen. However, there are finer points. When she immigrated to the U.S. was she in legal and physical custody of the U.S. father? You need to answer yes to this question for her to be a U.S. citizen under the child citizenship act. I don't know if the department of state issues passports under these cases once the child has become an adult. There was someone recently with a similar case, but still don't know if it is possible to get a passport. If she doesn't want to spend the money right away she might want to schedule an Infopass at her local USCIS office and explain her case to figure out the chances. On the surface the chances seem to be pretty good that she is a citizen.

 

[hwan]

Hi Huracan,

Thank you for your reply. My understanding is that when her father sponsored her to the US, he had to get her mother to agree to let her go. Does that mean the father had received full legal custody? Does physical custody mean she needs to have physically lived with her father until she turned 18? If that's the case then I believe she did.

 

[Huracan]

I think the tougher point would be the legal custody part. I think the physical part is just to have moved in with her father, which she did. Not all the time until she turned 18, it is enough if it was just for a while before she turned 18. The thing is that at some point in time she had to comply with the requirements of the child citizenship act which are:
1. Have at least one American citizen parent by birth or naturalization;
2. Be under 18 years of age;
3. Live in the legal and physical custody of the American citizen parent; and
4. Be admitted as an immigrant for lawful permanent residence.

So, from your information it seems she met all the requirements, except perhaps the legal custody. However, I don't have expertise on how stringent is the legal custody requirement, but in many cases I am sure it involves having divorce papers, legal custody papers and things like that. It might also matter if the parents were legally divorced or not. If they were not divorced perhaps the legal custody is a non-issue. If they were divorced and the mother had legal custody perhaps an affidavit from her saying that she relinquished custody might help (I don't know, I am just throwing some thoughts).

On the other hand she could apply for naturalization in the worst case that she didn't meet all requirements for automatic citizenship.

I found this information on the Internet:

"In cases of adopted children, the INS will find that a citizen parent has legal custody "based on the existence of a final adoption decree." In cases of a child of divorced or legally separated parents, the INS will consider a citizen parent to have legal custody where the parent has been granted "an award of primary care, control, and maintenance" of the child by a court of law or other appropriate government entity. Where there is an award of "joint custody," the INS will consider both parents to have legal custody. In cases where the issue of custody is not explicitly addressed in a divorce decree or a separation agreement, the determination of legal or joint custody will be based on the laws of the state or country of residence. The regulations state that "[t]here may be other circumstances under which the Service will find the U.S. citizen parent to have legal custody for purposes of the CCA."

From:
http://www.nilc.org/immlawpolicy/natzcitzshp/nc035.htm

 

[bertgolz]

her father should've had legal custody (court ordered) over her prior her turning 18. If he didn't, she is not a USC

 

[hwan]

Thanks everyone for your opinions. I think the father had legal custody because her mother had to sign an agreement to release custody before my girlfriend could immigrate to the US to re-unite with her father. I plan to get her on the phone and call the USCIS. Will they be able to tell if she qualifies or not?

 

[boatbod]

Thanks everyone for your opinions. I think the father had legal custody because her mother had to sign an agreement to release custody before my girlfriend could immigrate to the US to re-unite with her father. I plan to get her on the phone and call the USCIS. Will they be able to tell if she qualifies or not?

USCIS customer service line is unlikely to be able to give a definitive answer (they frequently seem to make stuff up if they don't know the answer). Your best bet is either consult an appropriately qualified attorney, or (maybe) take an Infopass appointment and consult with an immigration officer in person.

My opinion: based on the rules of Child Citizenship Act 2000, it does seem like she is already a USC.

 

[Huracan]

I agree with boatbod However, the last word is in the finer points of legal custody which probably won't be determined until she applies for N-600 and risk the money.