How do I prove that I have legal and physical custody of my legal permanent resident child so that he or she can automatically derive U.S. citizenship from me?
The laws regarding the acquisition of citizenship (when children automatically become U.S. citizens at birth through a U.S. citizen parent) and derivation of citizenship (when children automatically become U.S. citizens before they are 18 through a U.S. citizen parent) have changed over the years and depend on when the applicant was born. If you think that you or your child automatically became a U.S. citizen before turning 18, it is important to speak with an immigration attorney who can apply the relevant law that applied at that time of you or your child’s birth.
What are the legal requirements?
For children who were under 18 or born after February 27, 2001, the following conditions must all be met before they turn 18:
- At least one parent must be a U.S. citizen. It does not matter whether the parent was a U.S. citizen a birth or naturalized later.
- The child is a lawful permanent resident.
- The child is residing in the U.S. in the legal and physical custody of the U.S. citizen parent.
What does it mean for the child to reside in the physical and legal custody of the parent?
The U.S. Citizenship and Immigration Services (USCIS) considers, among others scenarios, the following situations to have met this requirement:
- ·The child lives with both biological parents in the United States and the parents are legally married.
- If one parent is deceased, the child lives with the surviving U.S. citizen parent in the United States.
- If the parents are divorced or separated, the child must live in the United States with the U.S. citizen parent who has been awarded custody by a court of law or other appropriate government entity. It is fine if the parents have been awarded joint custody—however, there must be some sort of order granting the U.S. citizen parent either sole or joint custody of the child.
What are the potential issues?
There must be a legal document—for example, a divorce decree or a custody order from a Family Court or other appropriate authority- that gives the U.S. citizen parent custody. Without this legal document, you cannot prove legal custody of your child, even if you and your divorced or separated spouse have made informal agreements between one another.
This is especially important for separated couples that continue to remain legally married—your child will only derive citizenship automatically if you remain married and are still living together. If you are separated but do not have a legal separation agreement or custody order discussing the custody of the child, you will not satisfy this requirement.
USCIS as well as the Department of State, are strict in ensuring that all individuals being granted citizenship meet these requirements and have documentation to prove it. Once someone is granted citizenship, there is almost nothing that can take that away absent new information that made them ineligible for citizenship in the first place. Therefore, grants of acquisition and derivation of citizenship only happen when someone clearly proves their eligibility and the burden of proving this is on you.
Acquisition and derivation of citizenship are laws that can tremendously help individuals. A number of individuals are already citizens and do not know it! If you would like information, please contact us. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news.
Rasoulpour Torregoza is the law firm for immigrants, by immigrants. We are founded on the motto of LegalEase: we do away with the legal jargon and make law easy to understand, so you can focus on what’s important to you – going for your American Dream.
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