Son entered on K2 Visa- want to cancel and apply got N-600

[aaron2020 11,651]

Sorry Aaron your info is not correct.I have talked to an IO about this ,and it does state so in the N 600 that the child HAS to be a Permanent Resident first.

Doesn't make any sense to me either and I sure would have liked to spent the 600$ we spent for AOS for my son on his N 600 but thats how they want it done...

Nat

That's only if you are looking at #2 which is how a child of a USC gains citizenship as an "operation of law." This includes adoption by a USC and being an unmarried minor in the custody of an LPR parent who becomes a USC.

A child born to a USC who meets the residency requirement is a USC. That child has a claim to US citizenship based on birth and not by operation of law.

A child born to a USC who meets the residency requirement just has to report his/her birth to the US embassy to get proof of US citizenship. So, it does not make sense that your child would need to do an adjustment in the US as he is already a USC and does not need to adjust to be an LPR.

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INA: ACT 301 - NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;

If the child is a USC by birth then how can the child be issued a visa? A USC does NOT need a visa.... There have got to be more facts to this story

It was likely that US citizenship could not be established and that was why the OP obtained a visa for her child.

Edited September 16, 2009 by aaron2020

[payxibka 10,045]

It was likely that US citizenship could not be established and that was why the OP obtained a visa for her child.

Then the child entered the US NOT as a USC but as a non-immigrant alien and then I believe needs to become a permanent resident before citizenship process can occur

Edited September 16, 2009 by payxibka

[aaron2020 11,651]

It was likely that US citizenship could not be established and that was why the OP obtained a visa for her child.

Then the child entered the US NOT as a USC but as a non-immigrant alien and then I believe needs to become a permanent resident before citizenship process can occur

The child entered as an immigrant because his US citizenship could not be established. With the father's help, his US citizenship can now be established so why would he need to do an AOS if he can now supply the missing information? Doesn't make sense to go through the AOS if he can now establish that he is a USC.

[payxibka 10,045]

It was likely that US citizenship could not be established and that was why the OP obtained a visa for her child.

Then the child entered the US NOT as a USC but as a non-immigrant alien and then I believe needs to become a permanent resident before citizenship process can occur

The child entered as an immigrant because his US citizenship could not be established. With the father's help, his US citizenship can now be established so why would he need to do an AOS if he can now supply the missing information? Doesn't make sense to go through the AOS if he can now establish that he is a USC.

The child entered as a K-2... this is a NON immigrant entry. If citizenship could be established it needed to occur before entry... seems dumb but that is what appears to have happened.

Edited September 16, 2009 by payxibka

[VetsWife328 7]

A natural born Citizen WILL get a Visa when the birth of that child has not been registered abroad at an American Consulate and in my case that didn't happen because bio Dad never did sign those papers since by doing that he would not only have acknowledged Paternity but also ( legally binding under US law) agreed to pay Child Support.

The ONLY reason my son was granted a Visa is because I didn't have proof that bio Dad has lived in the USA and fullfilled the residency requirments.

I spent several hours at the Consulate in Frankfurt at the Citizenship Section, until they determined that my son could even get a Visa.

So in short,if there is a question whether the residency requirments of the US CItizen Parent have been met,the child is still eligable for a Visa,since his US Citizenship and not his Nationality at the point of Visa Application is in question.

Nat

[payxibka 10,045]

A natural born Citizen WILL get a Visa when the birth of that child has not been registered abroad at an American Consulate and in my case that didn't happen because bio Dad never did sign those papers since by doing that he would not only have acknowledged Paternity but also ( legally binding under US law) agreed to pay Child Support.

The ONLY reason my son was granted a Visa is because I didn't have proof that bio Dad has lived in the USA and fullfilled the residency requirments.

I spent several hours at the Consulate in Frankfurt at the Citizenship Section, until they determined that my son could even get a Visa.

So in short,if there is a question whether the residency requirments of the US CItizen Parent have been met,the child is still eligable for a Visa,since his US Citizenship and not his Nationality at the point of Visa Application is in question.

Nat

and therefore it was determined then that due to lack of proof he was NOT a citizen...

[VetsWife328 7]

NOT correct.It was NOT determined that he's not a Citizen.

The only thing that was determined is that AT THAT POINT there was no proof for his bio fathers residency requirments being met.

My son was born February 4th,2001 on February 27 or 28th of 2001 the laws changed (regarding children born out of wedlock to one US Citizen parent and an Alien living abroad) ,my boy ISa natural born Citizen of the USA.

And I am about to gather the evidence for that and get him his blue Passport.

Nat

[payxibka 10,045]

He is not a citizen until citizenship is granted... so AT THAT TIME, he was determined not to be (lack of proof of eligibility) so therefore he was not.

Edited September 17, 2009 by payxibka

[aaron2020 11,651]

He is not a citizen until citizenship is granted... so AT THAT TIME, he was determined not to be (lack of proof of eligibility) so therefore he was not.

Wrong. Her son is a US citizen. He acquired due to being born to a US citizen who meets the residency requirement. The US embassy/consulate issuing the visa required proof and it could not be presented, therefore he was required to have a visa to enter the US.

There is a big difference in determining that someone is not a US citizen and the situation where that person cannot prove he is a US citizen. By analogy, if you are stop by the police for driving without a license and you had left your license at home - does that mean you are not a licensed driver or does it mean you can't prove to the police that you are a licensed driver? Big difference.

[payxibka 10,045]

Even bigger difference between a potential "claim" to citizenship and actually being a citizen. Until a decision is rendered on the individual's "claim" to citizenship, citizenship is not conveyed. Since eligibility for citizenship could not be determined, US citizenship was not officially conveyed AT THAT TIME... therefore not yet officially a citizen. If the child was a citizen then no visa was required. Since citizenship had not yet been conveyed, the child was not a citizen and required a visa.

Conveyance of citizenship may occur at a later date once the "claim" for citizenship is adjudicated but at that time or until that time, he is not...

FWIW, I have a potential "claim" to German citizenship based on parentage... however, until such time as the German government renders a decision on my "claim", am I a German citizen? Since I do not qualify for automatic conveyance (as is the situation here), the answer is NO. Conveyance of citizenship does not occur until the "claim" is decided.

Edited September 17, 2009 by payxibka

[aaron2020 11,651]

Even bigger difference between a potential "claim" to citizenship and actually being a citizen. Until a decision is rendered on the individual's "claim" to citizenship, citizenship is not conveyed. Since eligibility for citizenship could not be determined, US citizenship was not officially conveyed AT THAT TIME... therefore not yet officially a citizen. If the child was a citizen then no visa was required. Since citizenship had not yet been conveyed, the child was not a citizen and required a visa.

Conveyance of citizenship may occur at a later date once the "claim" for citizenship is adjudicated but at that time or until that time, he is not...

FWIW, I have a potential "claim" to German citizenship based on parentage... however, until such time as the German government renders a decision on my "claim", am I a German citizen? The anser, NO. Conveyance of citizenship does not occur until the "claim" is decided.

The US embassy has no legal authority to "convey" citizenship to anyone. Their job is to determine if someone needs a visa to enter the US. If the person cannot prove citizenship, then that person needs a visa to enter the US.

German law does not operate the same way as US law. The manner of establishing German citizenship has nothing to do with how to establish US citizenship. Your analogy does not work because each country has it own laws on how citizenship is determined. For example, being born in Vietnam does not automatically makes someone a Vietnamese citizen. A person born in Vietnam has to have at least one Vietnamese parent to claim citizenship. If that person is born to two Vietnamese citizens, that person is automatically a Vietnamese citizen. Citizenship laws varies from country to country.

I'm a USC. If I travel to a foreign country and loss all identifications that I am a USC or who I am. I go to the US embassy and tell them that I am a USC but I have no proof. What would happen? They will try to determine if I am a USC or not. I would have to supply them with proof. If I can't do it, then am I not a USC? I just lack proof of citizenship. Lacking proof of status does not mean you don't have that status.

INA 301 states that a person born outside the US to an alien and a USC parent who has reside in the US for 5 years (2 of which is after age 14) prior to the birth IS A US CITIZEN AT BIRTH. No conveyance of citizenship is need. Is is a birth right. Since anyone can say that they have US citizenship based on this situation, the US embassy requires proof. Lack of proof does not mean the person is not a USC.

Edited September 17, 2009 by aaron2020

[aaron2020 11,651]

I'm a USC. If I travel to a foreign country and loss all identifications that I am a USC or who I am. I go to the US embassy and tell them that I am a USC but I have no proof. What would happen? They will try to determine if I am a USC or not. I would have to supply them with proof. If I can't do it, then am I not a USC? I just lack proof of citizenship. Lacking proof of status does not mean you don't have that status.

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Going back to this. The US embassy has no legal authority to determine that I am not a USC because I lack proof. For entry into the US, I may be bar from entering until I have proof of US citizenship or a visa allowing entry.

Edited September 17, 2009 by aaron2020

[payxibka 10,045]

but that is why the USCIS has foreign offices which one of there responsibilities is just that... take the "claim" as received by the consular and render a decision and issue a US passport if the claim is satisfied....

[aaron2020 11,651]

but that is why the USCIS has foreign offices which one of there responsibilities is just that... take the "claim" as received by the consular and render a decision and issue a US passport if the claim is satisfied....

I can go to a US embassy without any ID. I can make a claim of US citizenship. The US embassy requires proof that I am. If I can not provide the proof, then the claim is not satisfied. They may require that I get a visa to enter the US. However, they do not have the legal authority to determine that I am not a USC.

I claim to own a red car. I don't have the title with me. There is no other way to independently verify that I own the car aside from the title. Does that mean my claim is wrong? Can the police reject my claim and determine that I am not the owner because of the lack of proof. I think not. The police will reject my claim until I can offer proof.

[aaron2020 11,651]

There is a very subtle and legally significant difference between rejecting a claim of citizenship and determining that someone is not a citizen. Rejecting a claim is not a conclusion. Determining that someone is not a citizen is a conclusion.

I am a USC. I may not be able to prove to you that I am a USC. You can reject my claim that I am a USC because of the lack of proof. However, you cannot make the determination that I am not a USC.

Edited September 17, 2009 by aaron2020