Children coming to the United States to make their lives here with their families – perhaps more than anything, their arrival demonstrates the energy, hope and promise of our country to the world and to ourselves. Once the children have finally got here, the relief and joy is so great, the long wait and difficult paper work over at last – it is very easy for family members such as adoptive parents to postpone or forget the steps needed to get their children's final documents in order. Yet in this time of exceedingly complex immigration rules, having the proper documents is getting more important.
Most everyone agrees that children coming to the United States should receive the proper legal status as soon as possible, as well as the proper documents to prove their status, so they will have no trouble with important everyday details such as getting Social Security cards and registering for school. The U.S. Federal Government is working to make it easier for many children to get the documents they need. The U.S. Congress passed the Child’s Citizenship Act (CCA), which became law in February, 2001; and the U.S. Citizenship and Immigration Service (USCIS) has established a pilot project on streamlined processing of certificates of citizenship for those children who qualify. The organizations dealing with children and families, such as adoption agencies, should encourage parents and others involved with children eligible for citizenship to get Certificates of Citizenship for their foreign-born children. Such organizations should also ensure that those children needing additional immigration legal work get assistance to obtain United States citizenship and the documents showing it.
These efforts have been necessary, an estimate indicates that over 40,000 children who have entered the United States through intercountry adoption and are citizens under the CCA do not have certificates of citizenship. Although citizens by operation of law they have no document identifying them as US citizens. The certificate of citizenship is the only document to authenticate that an individual child is a citizen of the United States. Should the Certificate be lost the USCIS has the computer capability to provide a duplicate. Every child who comes into the United States through intercountry adoption should become a documented US citizen. Adoption agencies should adapt their procedures to ensure that families complete this final step of proper documentation for their adoptive children.
USCIS still has a backlog for many children's citizenship certificate applications in its offices throughout the country. But the agency has improved processing with its pilot project begun in November 2003 to eliminate the backlog by handling them at one office (the Buffalo, NY District Office). According to the USCIS more than 550 cases were completed through this effort for citizenship for children.
Children who qualify for the new USCIS streamlined procedures for certificates:
The Department of Homeland Security (DHS) Bureau of Citizenship and Immigration Services (CIS) has streamlined the process for securing certificates of citizenship so children who enter the United States on the IR-3 visa (where there has been a full and final adoption overseas recognized by their state of residency). These children are automatically U.S. Citizens when they enter the United States. The child(ren) must have one US citizen parent, be under 18 years of age, and considered an immigrant. These newly entering children should receive the Certificate of Citizenship within 45 days of their arrival. They do not receive a Permanent Resident Card (PRC) and are not required to complete additional immigration paperwork like filing the N-600- Application for Citizenship. The CIS implemented this process effective January 1, 2004. The USCIS appears to be meeting its goal of providing the child’s certificate within 45 days.
Rules for other adopted children entering the United States:
Our discussion involves six groups of children: 1) The orphan child who entered the United States under INA section 101(b)(1)(F) on an IR-3 visa prior to January 1, 2004 and must apply for a certificate; 2) The child who entered the United States on an IR-4 visa and must be finally adopted in the state where s/he lives; 3) Children who meet the definition of an adopted child under INA & 101 (b)(1)(E); 4) Children who have been adopted by US citizens abroad and continue to live overseas; 5) Children who were adopted by lawful permanent residents; and 6) Children who are in limbo because of an adoption disruption.
- The child who entered the United States on an IR-3 visa before January 1, 2004, must have their parents submit an N-600 Application for Citizenship to the local CIS District Office within their jurisdiction. In the future the CIS may develop another pilot program for these children, but the parents should apply immediately. The child is eligible if s/he is in the legal and physical custody of his/her adoptive parents, one of whom is a United States citizen. Once the application is filed with CIS and an urgent need for the document is shown, the CIS may expedite the process.
- The child who enters the United States on an IR-4 visa must go through the final adoption process in the state of residency before filing for a Certificate of Citizenship. The IR-4 visa is given to the orphan child where there has not been a final adoption, an adoption by proxy, or where only one parent has seen the child, or where the overseas officer processing the case finds there is some problem in processing that warrants issuing the IR-4 visa rather than the IR-3 visa. There are many cautionary tales about families caught unawares in horrible situations because of earlier failure to complete these procedures — such as, the child has been here for ten years with no final adoption, expired PRC and cannot leave the Country on family trip causing added expense and paperwork. Adoption agencies should insist on the completion of these procedures, as the failure to do so can result in tragedy for the adopted child and the adoptive family years in the future.
- Children who meet the definition of adopted child under Section 101(b)(1)(E) of the INA, a situation similar to children entering the U.S. as IR-4 immigrants, described above. The family should: (1) finally adopt the child in the United States; (2) apply to the USCIS for lawful permanent residence for the child through the family-sponsored visa petition process; and (3) apply for the Certificate of Citizenship at the same time. In this situation the child must have been in the legal and physical custody of the parents for two years.
- Children adopted overseas by U.S. lawful permanent residents. If the child came to the United States as the adopted child of one or two lawful permanent residents, the child under 18 years of age may become a U.S. citizen when his or her permanent resident parents naturalize. The child must have been in their legal and physical custody for two years. This requires the parents to file N-400 Applications for Naturalization for themselves, and the parents being naturalized before their adopted child reaches the age of 18 years. The natural foreign-born children of U.S. lawful permanent residents also automatically become U.S. citizens when their parents naturalize before the children reach 18. In both situations, the parents should obtain Certificates of Citizenship for the children. Depending on the family situation, sometimes the foreign-born children of U.S. lawful permanent residents, who are permanent residents themselves, may acquire U.S. citizenship when only one of the parents has naturalized. Of course, the children who are born in the U.S. are already U.S. citizens, and their birth certificates prove their citizenship.
- Children adopted by United States citizen parents who live overseas. These children are not eligible under the CCA for automatic citizenship. But the parents can obtain citizenship for the children by filing N-600K-Application for Citizenship and Issuance of Certificate. The application may be filed at any USCIS District or Sub-Office in the United States, and the child must be brought to the United States before the citizenship is approved.
- Children adopted through an intercountry adoption process which is disrupted. Often this means that the child is in limbo with respect to his or her immigration status. As more and more children are the victims of a disruption (at least those who arrived on an IR-3 visa prior to January 1, 2004), the parents or the parents with whom the child is placed must ensure that the child gets his or her citizenship. If the child was not in the custody of the adoptive parents after February 27, 2001, the child is not a citizen. There are no data on the number of children in this situation. However, once this child turns 18 years of age and is on his or her own, it is imperative that all care givers find legal assistance for these young adults as they turn 18 years old. They must apply for naturalization on their own. At a minimum they must show they are 18 years old; have been a lawful permanent resident for at least five years; show they are of good moral character; 4) complete form N-400 – Application for Naturalization with the appropriate application and fingerprint fees.
Being a United States citizen makes a difference
We know the unfortunate stories about young adults being deported because their adoptive parents never applied for the child’s citizenship. The child commits some seemingly minor infractions of the law. The bottom line is that a lawful permanent resident who commits a crime is very often deportable, even if the crime is minor. Today there are very important differences between the rights of citizens and of lawful permanent residents. So it is extremely important for parents to fulfill the promise of hope for the future they demonstrated by bringing the children here, by completing the process to make sure their children become citizens. Failing to do this for the children means that some of them risk being deported back to their native countries after many years of living in the United States, even if they do not know the language and have no place to live there. These young persons are in a tragic situation, and perhaps would have been better off if they had never come to the U.S.
It should be added here that some of the children who may find themselves in this predicament of being 18 years of age and needing to file for naturalization on their own may have some serious limitations. For persons who have a disability, there is a disability waiver to the English and/or civics requirements for naturalization. The applicant simply has to submit an N-643 Disability Waiver form with the application to ensure they are exempt from the English and/or civic requirements.
Get good, reliable information
There are many more areas of concern for citizenship-----of these children-----I have established the Children’s Citizenship Project to promote the securing of certificates of citizenship for all children eligible under the Child’s Citizenship Act and also for all children who are in the United States through intercountry adoption or are in the United States with incomplete documentation and must have their citizenship secured or naturalization acquired. Parents and children with questions about citizenship should seek expert immigration advice from lawyers who are immigration specialists. Often people visit the USCIS offices to ask questions, but they should know that the officers answering the questions are not lawyers, and are not responsible for giving correct advice.
The Immigration and Naturalization Service (INS) ceased to exist on March 31, 2003; its functions have been divided up and given to other parts of the Department of Homeland Security (DHS). The USCIS has the responsibility of processing the petitions and applications submitted to the U.S. government to obtain immigration benefits.
Jody Marten practices immigration and adoption law and has started a Children’s Citizenship Project to reach out to the community to encourage documented citizenship for children. She can be reached at www.jodymarten.com.