can my brother acquire my father's immigration status?

[rosy2509 4]

Hi everyone!

We need an urgent answer here. My dad just successfully passed his naturalization interview yesterday. Now he's wondering if my 15 year old brother can acquire his status.

Here is the situation: My father and his now ex-wife share 50/50 legal custody of my brother. However, the mother has 55% physical custody and my dad has 45%. My brother resides with his mother in FL, and just comes to visit my dad three times a year.

What do we need to get done so my brother can become a citizen?

Thanks a lot!

I should also add that both my brother and his mother are green card holders and have been in the states for six years.

[teeak 224]

The child was under 18 or not yet born on February 27, 2001 At least one parent is a U.S. citizen, the child is currently under 18 and residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to lawful admission for permanent residence.

http://www.uscis.gov/us-citizenship/citizenship-through-parents

It seems like he needs to be in the physical custody of the US citizen parent -- so I'm not too sure if your situation applies

My cousin recently obtain US citizenship through my aunt who naturalized. She's 10 years old and was a GC holder. All they did was go to the post office, and apply for a US passport for her by providing the naturalization certificate and my cousins birth certificate.

Edited December 16, 2015 by teeak

[Hypnos 6,576]

Unsure whether the Child Citizenship Act applies here due to your mother having primary custody of your brother.

You should consult with an experienced immigration attorney and ask this question of them.

If the CCA does apply then your brother will become a US citizen on the same day your father does (i.e. the oath ceremony).

(Edit) Found this: http://www.uscis.gov/policymanual/Print/PolicyManual-Volume12-PartH.html

USCIS considers a ​U.S.​ citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.​

Edited December 16, 2015 by Hypnos

[rosy2509 4]

The child was under 18 or not yet born on February 27, 2001 At least one parent is a U.S. citizen, the child is currently under 18 and residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to lawful admission for permanent residence.

http://www.uscis.gov/us-citizenship/citizenship-through-parents

It seems like he needs to be in the physical custody of the US citizen parent -- so I'm not too sure if your situation applies

My cousin recently obtain US citizenship through my aunt who naturalized. She's 10 years old and was a GC holder. All they did was go to the post office, and apply for a US passport for her by providing the naturalization certificate and my cousins birth certificate.

Thank you for your reply! That's indeed the big mystery for us! My dad does not have the full custody, but it's shared between the two parents. So I guess we will need to consult an attorney.

[rosy2509 4]

Unsure whether the Child Citizenship Act applies here due to your mother having primary custody of your brother.

You should consult with an experienced immigration attorney and ask this question of them.

If the CCA does apply then your brother will become a US citizen on the same day your father does (i.e. the oath ceremony).

(Edit) Found this: http://www.uscis.gov/policymanual/Print/PolicyManual-Volume12-PartH.html

USCIS considers a ​U.S.​ citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.​

Thanks for taking the time to reply. Yes, it sure looks like we need to consult an attorney.

[kovacs 20]

You could always apply for a passport. Probably cheaper than the attorney consult. Let the state department figure it out.

[Boiler 45,519]

Mother could naturalise.

[aaron2020 11,651]

One of the requirements of the Child Citizenship Act is that the LPR child must live with the USC parent; ergo "reside in the physical custody of the USC parent." Has nothing to do with shard custody. Where is the child's residence? Look at school records.

The child has to live with you to get derivative citizenship.

Edited December 17, 2015 by aaron2020

[rosy2509 4]

One of the requirements of the Child Citizenship Act is that the LPR child must live with the USC parent; ergo "reside in the physical custody of the USC parent." Has nothing to do with shard custody. Where is the child's residence? Look at school records.

The child has to live with you to get derivative citizenship.

When I read the policy that's what i told my father. But I talked to an attorney today and he said joint custody means "joint custody" so even though my brother can't live with my father due to living in FL he still has joint physical and legal custody of my brother. We are going to apply for the passport and let the Department of State do their job.

[kovacs 20]

I honestly think that if you have a divorce decree showing joint custody, State Department will just issue it, no questions asked.

When I read the policy that's what i told my father. But I talked to an attorney today and he said joint custody means "joint custody" so even though my brother can't live with my father due to living in FL he still has joint physical and legal custody of my brother. We are going to apply for the passport and let the Department of State do their job.

[Hypnos 6,576]

Based on what I've read, I would be inclined to agree.

[Pinkrlion 2,720]

There is a difference between joint custody and visitation rights.

[newacct 688]

"Joint custody" is sufficient.

In 8 CFR 320.1(2) it says "The Service will consider a U.S. citizen parent who has been awarded “joint custody,” to have legal custody of a child."

The USCIS Policy Manual says the same thing: "USCIS considers a ​U.S.​ citizen parent who has been awarded “joint custody” to have legal custody of a child."

The State Department Foreign Affairs Manual also says the same thing (7 FAM 1159.1(e)(3)(b)): "Children whose parents are legally separated must be in the full or joint custody of the U.S. citizen parent. In the case of joint custody, physical custody is implied regardless of the actual physical custodial situation"

[Darnell 8,478]

You could always apply for a passport. Probably cheaper than the attorney consult. Let the state department figure it out.

I concur. And you'll know the result within 3 months.

[davidjesse 0]

Did he receive the passport?